i 

October 2016 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

10-21-16 ICG ILLINOIS, LLC LAKE 2013-160 Page 2473 

COMMISSION ORDERS 

10-07-16 KINGWOOD MINING COMPANY, 

LLC 

WEVA 2009-857 Page 2493 

10-19-16 STREAM CONSTRUCTION CENT 2015-212-M Page 2496

10-19-16 BAYER CONSTRUCTION CO. CENT 2015-255-M Page 2499

10-19-16 CUMBERLAND COAL 

RESOURCES, LP 

PENN 2015-101 Page 2502

10-19-16 SPRAGUE STONE WEST 2015-284-M Page 2505

10-19-16 SOLVAY CHEMICALS, INC. WEST 2015-342-M Page 2508

10-19-16 KINGSTON MINING, LLC WEVA 2015-318 Page 2511

10-20-16 CYPRESS POINTE INC. CENT 2015-480-M Page 2514

10-20-16 C & H GRAVEL COMPANY LAKE 2015-554-M Page 2517

10-20-16 GIBSON COUNTY COAL, LLC LAKE 2015-588 Page 2520

10-20-16 BRODY MINING, LLC WEVA 2015-836 Page 2523
ii 

10-20-16 GATEWAY EAGLE COAL 

COMPANY, LLC 

WEVA 2015-844 Page 2525

10-20-16 SALLY ANN COAL COMPANY, 

INC. 

WEVA 2015-900 Page 2527

10-20-16 P.A. LANDERS, INC. YORK 2015-123-M Page 2530

10-25-16 SHAWN HIRT v. GARY SERVAES 

ENTERPRISES 

CENT 2015-598-DM Page 2533

10-27-16 BLUFF CITY MINERALS LAKE 2014-0393-M Page 2535

10-27-16 JESSE CREEK MINING, LLC SE 2015-310 Page 2538

10-27-16 CARSON HILL ROCK PRODUCTS WEST 2014-389 Page 2543

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-06-16 TILCON NEW YORK INC YORK 2016-66 Page 2547

10-07-16 APAC-KANSAS, INC. CENT 2015-1-M Page 2560

10-13-16 SEC. OF LABOR O/B/O J.S.S. v. 

NICHOLAS CONTURA, LLC 

WEVA 2016-615-D Page 2578

10-18-16 MEYER AGGREGATE LLC CENT 2015-654 Page 2596

10-18-16 THE AMERICAN COAL COMPANY LAKE 2011-701 Page 2612

10-18-16 CONSOLIDATION COAL 

COMPANY 

WEVA 2015-651 Page 2624

10-21-16 SEC. OF LABOR O/B/O SHAYNE 

BUNGARD v. GMS MINE REPAIR 

& MAINTENANCE 

WEVA 2015-793-D Page 2664
iii 

10-24-16 BLACK BEAUTY COAL COMPANY LAKE 2009-412 Page 2686

10-26-16 PREMIER ELKHORN COAL 

COMPANY 

KENT 2011-827 Page 2690

10-27-16 SEC. OF LABOR O/B/O THOMAS 

MCGARY and RON BOWERSOX v. 

THE MARSHALL COUNTY COAL 

CO., MCELROY COAL COMPANY, 

MURRAY AMERICAN ENERGY, 

INC., AND MURRAY ENERGY 

CORPORATION 

WEVA 2015-583-D Page 2694

ADMINISTRATIVE LAW JUDGE ORDERS 

10-07-16 CONSOLIDATION COAL 

COMPANY 

WEVA 2015-230 Page 2703

10-17-16 JOSHUA A. FRANKS v. D&L WELD 

and TRILLIUM CONSTRUCTION 

SERVICES 

PENN 2016-261-DM Page 2706

10-25-16 DANIEL B. LOWE v. VERIS GOLD 

USA, INC., and JERRITT CANYON 

GOLD, LLC 

WEST 2014-614-DM Page 2709

10-28-16 MATTHEW A. VARADY v. VERIS 

GOLD USA, INC., and JERRITT 

CANYON GOLD, LLC 

WEST 2014-0307-DM Page 2723
iv 

Review was not granted in any case during the month of October 2016. 

Review was denied in the following cases during the month of October 2016: 

Jacob Hamilton v. American Mining and Tunneling, LLC, Docket No. WEST 2016-326 DM 

(Judge Manning, August 30, 2016)

Secretary of Labor v. H. Bittle & Son, Inc., Docket No. YORK 2014-176-M, et al. (Judge Paez, 

September 16, 2016) 

Shawn Hirt v. Gary Servaes Enterprises, Docket No. CENT 2015-598-DM (Judge Miller, August 

24, 2016) 

Secretary of Labor v. Coeur Alaska, Inc., Docket No. WEST 2015-346, et al. (Judge Simonton, 

September 20, 2016) 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

October 21, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Docket No. LAKE 2013-160 

v. 

ICG ILLINOIS, LLC 

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

DECISION 

BY: Jordan, Chairman; Young, and Cohen, Commissioners 

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

§ 801 et seq. (2012) (“Mine Act” or “Act”). It involves a single citation issued to ICG Illinois,

LLC (“ICG”) by the Department of Labor’s Mine Safety and Health Administration (“MSHA”).

The citation alleges that a refuge alternative at ICG’s Viper Mine was located 1,110 feet from the

nearest working face, in violation of 30 C.F.R. § 75.1506(c)(1).

1

 The Judge concluded that a

violation had occurred, was significant and substantial (“S&S”), and was the result of moderate

negligence.2 37 FMSHRC 19, 25-27 (Jan. 2015) (ALJ). The only issue remaining before the

Commission is the S&S designation. For the reasons below, we affirm the Judge.

1

 30 C.F.R. § 75.1506(c)(1) provides in relevant part that “[r]efuge alternatives shall be 

provided . . . within 1,000 feet from the nearest working face.” Refuge alternatives, also called 

refuge chambers, are “[p]refabricated self-contained units” with “structural, breathable air, air 

monitoring, and harmful gas removal components.” 30 C.F.R. § 75.1506(a)(1). 

2

 The S&S terminology is taken from section 104(d)(1) of the Act, 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.” 30 U.S.C. § 814(d)(1). 

38 FMSHRC Page 2473
I. 

Factual and Procedural Background 

 On September 18, 2012, MSHA Inspector Dennis Baum traveled to ICG’s Viper Mine to 

conduct a spot inspection for methane liberation.3 At the time, the mine was on a 10-day spot 

inspection cycle, due to methane liberation of more than 500,000 cubic feet in a 24-hour period.4

While looking through the mine’s examination books, the inspector noticed a report from the 

previous day indicating that the refuge alternative in the Main West primary escapeway needed 

to be moved closer to the working face. The issue was not mentioned in the pre-shift 

examination report for the day of the inspection, so he warned ICG’s safety and compliance 

foreman that a citation would be issued if the refuge alternative was still too far from the face. 

Meanwhile, ICG’s production supervisor, Gabriel Alderman, had headed underground for 

his shift. When he arrived on the section, the section foreman informed him that the refuge 

alternative had to be moved closer to the face. Alderman asked a scoop operator to begin 

preparing the new area for the relocation. Such preparations included scooping the crosscut, 

laying down floor dust, and moving signs and lifelines. The inspector and the safety and 

compliance foreman later traveled down to the refuge alternative, which had not yet been moved, 

and found that it was 1,110-1,125 feet from the closest working face, 110-125 feet farther than 

the allowable maximum pursuant to 30 C.F.R. § 75.1506(c)(1). Accordingly, Baum issued 

Citation No. 8443225. He concluded that the violation was reasonably likely to result in fatalities 

and designated the citation as S&S. 

The fact of the violation was not contested. 37 FMSHRC at 23. The Judge concluded that 

the violation was S&S, based on an analysis of the steps outlined in Mathies Coal Co., 6 

FMSHRC 1, 3-4 (Jan. 1984). He found that the violation contributed to the hazard of miners 

being unable to reach the refuge in the event of an emergency, because the extra distance “would 

result in additional and possibly critical delays accessing the chamber.” 37 FMSHRC at 25-26. 

He noted the mine’s history of methane and ignition issues, and the presence of possible ignition 

sources due to equipment working near the face. He stated that these conditions contributed to 

the likelihood of an ignition or explosion, which would cause poor visibility and disorientation. 

He found a reasonable likelihood of fatal injury for the 17 miners on the section. Id. 

 The Judge rejected ICG’s contention that the Secretary failed to take the particular facts 

surrounding the violation into account. In making this claim, ICG pointed to the inspector’s 

testimony that he would find every violation of the cited standard at this mine to be S&S. Tr. 46-

47. The Judge stated that the inspector had limited this testimony to violations “at this mine,” and 

also noted the mine’s history of ignition and methane problems and the presence of working 

 3

 Inspector Baum began working for MSHA in 2007. Prior to this, he had thirty years of 

experience in underground mines, during which time he ran nearly all types of equipment and 

conducted examinations. 37 FMSHRC at 23 n.2; Tr. 15-16. 

4

 Pursuant to section 103(i) of the Act, any mine that liberates more than 500,000 cubic 

feet of methane during a 24-hour period is required to have an MSHA inspector inspect the mine 

“every 10 working days at irregular intervals.” 30 U.S.C. § 813(i). 

38 FMSHRC Page 2474
equipment near the face. 37 FMSHRC at 26. The Judge also rejected ICG’s claim that the 

presence of self-contained self-rescuers (“SCSRs”) mitigated the gravity. He noted the 

inspector’s testimony that refuge alternatives are only meant for use in extreme situations where 

escape is impossible, and stated that SCSRs provide only a limited amount of air, do not protect 

against burns or falling rock, and “could not ensure that disoriented miners would be able to 

reach a refuge alternative located more than 100 feet beyond the distance they are trained to 

travel in emergencies.” Id. 

II. 

Disposition 

The Commission has recognized that 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 of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 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: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard—that is, a measure of 

danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). In conducting the Mathies analysis, the focus now 

generally centers on the interplay between the second and third steps. Newtown Energy Inc., __ 

FMSHRC __ , slip op. at 5, No. WEVA 2011-283 (Aug. 29, 2016). 

The second step of Mathies addresses the contribution of the violation to a discrete safety 

hazard, i.e., the extent to which the violation increases the likelihood of occurrence of the 

particular hazard against which the mandatory standard is directed. Newtown, slip op. at 5, citing 

Knox Creek Coal Corp., 811 F.3d 148, 162-63 (4th Cir. 2016) (citing Black Beauty Coal Co., 34 

FMSHRC 1733, 1741 n. 12 (Aug. 2012)). At this stage, it is essential that the Judge adequately 

define the particular hazard to which the violation allegedly contributes. A clear description of 

the hazard at issue provides context when determining the relative likelihood that the violation 

contributes to a hazard, and will also frame the potential source of injury for purposes of 

determining gravity in the third step of Mathies. The starting point for determining the hazard is 

the regulation cited by MSHA; the “hazard,” for purposes of the Mathies analysis, is the danger 

which the cited safety standard is intended to prevent. Newtown, slip op. at 6. 

Having clearly defined the hazard, the next task in analyzing the second step of Mathies

is for the Judge to determine whether the Secretary has proven that the violation contributed to 

that hazard. That means the second step requires a determination of whether, based upon the 

38 FMSHRC Page 2475
particular facts surrounding the violation, there exists a reasonable likelihood of the occurrence 

of the hazard against which the mandatory safety standard is directed. Id. We recognize that 

“reasonable likelihood” is not an exact standard measured in percentages, but rather a matter of 

degree, an evaluation of risk with a particular focus on the facts and circumstances presented.5

Id. at 7. 

At this stage, the focus shifts from the violation to the hazard. The third and fourth steps 

are primarily concerned with gravity, i.e., whether the hazard identified in step two would be 

reasonably likely to result in serious injury. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 

2364-66 (Oct. 2011) (citing Musser Eng’g, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1281 

(Oct. 2010); Knox Creek, 811 F.3d at 162. If the Judge concludes, based upon the evidence, that 

the violation sufficiently contributes to the hazard identified at step two, the Judge then assumes 

such occurrence and determines at step three whether, based upon the particular facts 

surrounding the violation, the occurrence of that hazard would be reasonably likely to result in an 

injury. At step four, the Judge determines whether any resultant injury would be reasonably 

likely to be reasonably serious.

Whether a particular violation is S&S must be determined “based on the particular facts 

surrounding the violation, including the nature of the mine involved.” Texasgulf Inc., 10 

FMSHRC 498, 501 (Apr. 1988). Additionally, the Commission has recognized that emergency 

standards “are different from other mine safety standards,” as they are “intended to apply 

meaningfully only when an emergency actually occurs.” Cumberland, 33 FMSHRC at 2367, 

aff’d, 717 F.3d 1020 (D.C. Cir. 2013). Accordingly, when determining whether a violation of an 

emergency standard is S&S, the violation should be considered in the context of the emergency 

contemplated by the standard. Spartan Mining Co., 35 FMSHRC 3505, 3508-09 (Dec. 2013). 

Specifically, the existence of a contemplated emergency should be assumed when defining the 

hazard contributed to by the violation. See Cumberland, 33 FMSHRC at 2364, 2368; Mill 

Branch Coal Corp., 37 FMSHRC 1383, 1394 (July 2015). The likelihood that the emergency 

will actually occur is irrelevant to the Mathies inquiry. Black Beauty Coal Co., 36 FMSHRC 

1121, 1124 (May 2014), citing Cumberland, 717 F.3d at 1027. Thus, contrary to ICG’s concerns, 

the inspector was correct to assume a “disaster” or “worst case scenario” when making his S&S 

determination. Tr. 31-33, 54-55. 

However, assuming the existence of an emergency is not the same as assuming that the 

violation is S&S; emergency standard violations are not per se S&S. As the Commission has 

made clear, the particular facts surrounding the violation must be considered. Not every violation 

of an emergency standard is automatically an S&S violation. Cumberland, 33 FMSHRC at 2368-

69. 

 5

 Chairman Jordan and Commissioner Cohen would hold that a violation sufficiently 

“contributes” if it is at least somewhat likely to result in, or could result in, a safety hazard. 

Newtown, slip op. at 20 (Jordan and Cohen, concurring and dissenting in part), citing Knox 

Creek, 811 F.3d at 162, 163 (the Secretary establishes a “contribution” for the purposes of the 

second step of Mathies when he shows that the violation is “at least somewhat likely to result in 

harm”); see also 30 U.S.C. § 814(d)(1) (“such violation is of such nature as could significantly 

and substantially contribute to the cause and effect of a . . . safety or health hazard”) (emphasis 

added). They conclude that the outcome of this case is the same under either standard. 

38 FMSHRC Page 2476
 Refuge alternatives provide a “last resort for miners unable to evacuate the mine during 

an emergency.” 73 Fed. Reg. 80656-01, 80681 (Dec. 2008); Tr. 26-27, 92-93. The inspector 

testified that emergencies requiring the use of a refuge would include roof falls, bad air, 

ignitions, or explosions. Tr. 26-27. Refuges increase the likelihood of survival in an 

“inhospitable post-emergency environment” by providing breathable air, water, food and 

communications. 73 Fed. Reg. at 80681. As for the specific requirement that refuges be located 

within 1,000 feet of the working face, the preamble to the final rule notes the “inability of miners 

on the working section to travel over 1,000 feet through smoke and debris to reach the refuge 

alternative, especially if injured or exhausted.” Id. at 80684. The standard at issue is intended to 

apply in the context of an emergency so severe as to make evacuation impossible, survival 

outside the refuge unlikely, and travel extremely difficult in the face of smoke, debris, and 

possible injury. 

Accordingly, the S&S analysis under Mathies in an emergency context must assume the 

existence of the emergency because the legislative or regulatory process that developed the 

standard assumed those conditions would be present at some point and directed that mines 

prepare for their occurrence. See Cumberland Coal, 717 F.3d at 1027-28; Spartan Mining, 35 

FMSHRC at 3508-09. The questions before the Judge in making his S&S determination were 

whether, in the context of the type of emergency described above, and based on the particular 

facts surrounding the violation, the additional distance sufficiently contributed to a discrete 

safety hazard and whether that hazard was reasonably likely to result in an injury of a reasonably 

serious nature. The Judge found in the affirmative.6

 

Prior to applying the record facts in this case to the four-step Mathies test, we note that 

we must use the substantial evidence standard of review to evaluate the Judge’s factual findings 

underlying his S&S determination. “Substantial evidence” means “‘such relevant evidence as a 

reasonable mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester & 

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence has been found to be more than a 

scintilla, but less than preponderance. Dynamic Energy, Inc., 32 FMSHRC 1168, 1173 (Sept. 

2010) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); Consolidated Edison, 305 U.S. 

at 2290 (the substantial evidence standard was met where the record was not “wholly barren of 

evidence” to sustain the Judge’s finding). 7

The Judge properly considered this violation in the context of the kind of emergency 

contemplated by the standard requiring the presence of an emergency chamber. The Judge found 

that the violation contributed to a hazard because the added distance would cause “additional and 

 6

 ICG only explicitly challenges the Judge’s findings as to the likelihood and severity of 

injury. However, because ICG’s arguments generally address whether the additional distance

(the violation) created a danger, we find it appropriate to address the second step of the Mathies 

analysis as well. 

7

 As we discuss the separate opinion of our dissenting colleague, we are mindful of the 

D.C. Circuit’s apt characterization of our substantial evidence standard as a “sensibly deferential 

standard of review” that respects the reasonable conclusions of the trier of fact. Keystone Coal 

Mining Corp., 151 F.3d 1096, 1105 (D.C. Cir. 1998). 

38 FMSHRC Page 2477
possibly critical delays” in miners reaching the refuge chamber in the event of an emergency 

such as an explosion, ignition or roof fall.8

 37 FMSHRC at 25-26. He noted the mine’s history of 

methane and ignition problems and the presence of ignition sources, and found that if an ignition 

or explosion were to occur, miners could face injury, poor visibility, and disorientation. Id. In 

other words, assuming an emergency significant enough to require a refuge chamber —which, at 

this mine, would most likely be an ignition or explosion resulting in disorientation, poor 

visibility and possible injury — the additional distance made it less likely that miners would be 

able to reach a place of safety. The Judge thus correctly identified the inability to reach the 

refuge chamber in the event of an emergency as the relevant hazard. 

The standard at issue requires refuges within a reachable distance of 1,000 feet “from the 

nearest working face.”9 30 C.F.R. § 75.1506(c)(1). Refuges are intended to increase the chance 

of survival during an emergency. It is part of the undisputed record that the refuge was at least 

1,110 feet from the working face, a full 11% over the allowable maximum.10 The farther a miner 

has to travel through smoke and injury, the less likely he or she is to reach the refuge. 73 Fed. 

Reg. at 80681, 80684. Clearly, a violation which interferes with a miner’s ability to timely reach 

a refuge poses a danger of the type contemplated by the relevant standard. Cf. Small Mine 

Development, 37 FMSHRC 1892, 1900-01 (Sept. 2015) (in the context of an emergency that 

impedes passage, failure to install a refuge chamber “clearly contributes to the hazards posed by 

miners not having a safe location to await rescue.”)11 

 8

 The Judge stated that the violation “contributes to the possibility” that miners would be 

incapable of accessing the refuge. 37 FMSHRC at 25. ICG claims that the Judge misapplied 

Mathies by focusing on mere possibilities. However, the choice of language is harmless here. As 

discussed below, the record indicates that under these particular facts, the violation clearly 

contributed to the hazard. 

 

9

 Our dissenting colleague faults us for assuming an emergency at the face when 

analyzing this violation’s contribution to the hazard at issue. Slip op. at 12 n. 2. Likewise, he 

faults the inspector for assuming an emergency at the face, stating, “[s]uch tunnel vision betrays 

a lack of expertise.” Slip op. at 16 n.8. However, while it is true that emergencies may arise 

outby the face, our colleague ignores the fact—understood by the inspector—that the cited 

regulation sets forth the maximum distance the refuge shelter can be from the face. As noted 

above, the “hazard” for purposes of the Mathies analysis is the danger which the cited safety 

standard is intended to prevent. The hazard contemplated by 30 C.F.R. § 75.1506(c)(1) is an 

emergency at the face. 

 

10 While the dissent characterizes our notation of the 11% variance as “conjured fiction,” 

slip op. at 13, it is simple mathematics applied to the facts of record and the language of section 

75.1506(c)(1). 

11 Small Mine Development is currently on appeal in the D.C. Circuit. Small Mine 

Development v. FMSHRC, No. 15-1391 (D.C. Cir. Oct. 27, 2015). Commissioner Young 

dissented and believes the case was wrongly decided. While he therefore disagrees with the use 

of Small Mine Development as an illustration of the premise stated here, he does not disagree 

with the premise, which in fact seems somewhat tautological. 

38 FMSHRC Page 2478
It is of course impossible to predict the time, location, nature or severity of a mine 

disaster. In exercising the authority delegated by Congress in Section 315 of the Mine Act, the 

Secretary should be presumed to have made a reasoned policy choice in establishing the 

requirements for shelters, including their location. Thus, while a violation of the standard is not 

S&S per se, and therefore an operator may rebut the Secretary’s argument that a particular 

violation of this standard is S&S, the record in this case supports the Judge’s determination and 

his application of Mathies. 

We find it significant that when the regulation was first proposed, as 30 C.F.R. § 

75.1506(b)(1), it provided that refuge alternatives shall be placed “between 1000 and 2000 feet 

from the working face . . . .” 73 Fed. Reg. 34140, 34178 (June 2008). However, after extensive 

public input, MSHA changed the location requirement in the final rule “based on testimony and 

comments regarding the inability of miners on the working section to travel over 1000 feet 

through smoke and debris to reach the refuge alternative, especially if injured or exhausted.” 73 

Fed. Reg. at 80684. If the additional distance of 110 feet was insignificant, MSHA would not 

have changed the location requirement in the final rule.12 

Although our dissenting colleague rues the lack of record evidence on points such as 

ceiling heights, the configuration of exit routes, and the presence of beltlines outby the face, slip 

op. at 15, the record does support a finding that this violation is at least somewhat likely —

indeed, reasonably likely — to contribute to the hazard of miners being unable to reach the 

refuge. The Secretary’s evidence on this point consisted of the inspector’s testimony.13 As a 

threshold matter, the inspector stated that, in determining whether to designate the violative 

condition as S&S, he assumed the occurrence of a mine disaster. He did so because refuge 

alternatives are only intended for use in situations in which escape is impossible, such as roof 

falls, fires, or explosions. He added that an additional 110 feet of travel is significant in such 

situations, when visibility is poor and miners may be injured and disoriented. 37 FMSHRC at 25. 

He noted that this is compounded by the fact that this distance is in addition to the 1,000 feet that 

would have already been traveled from the face, and agreed that every foot counts in an 

 12 Our dissenting colleague devotes many paragraphs to discussing comments in the 

rulemaking record which allegedly detract from MSHA’s conclusion that the refuge shelter may 

be positioned no more than 1000 feet from the nearest working face. Slip op. at 14-15. This 

attempted re-weighing of the rulemaking record might have been appropriate in the context of 

litigation challenging the legitimacy of MSHA’s final rule, but it is irrelevant to this case. 

 

13 The testimony and judgment of the inspector routinely play a significant role in S&S 

determinations. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278 (Dec. 1998); 

Cumberland Coal, 33 FMSHRC at 2365. While our dissenting colleague alleges that we 

“concede” that the inspector’s opinion “is the sole reason for [our] affirmance of the S&S 

designation,” slip op. at 15, this is something of an overstatement. Our reliance is on the entire 

record. The inspector’s testimony explained the significance of the facts of record and explained 

his S&S finding in the context of all of those facts. The Judge found the testimony credible and 

compelling, and we find no grounds for overturning his determination. 

38 FMSHRC Page 2479
emergency.14 Tr. 32-33. The inspector also testified as to the mine’s specific history of methane 

and ignition problems, and stated that in the event of a disaster, some miners would likely be 

injured, unable to walk, unable to see clearly, and unable to reach the refuge at that distance.15

Tr. 17, 31-32, 47, 54-55, 60; 73 Fed. Reg. at 80684. As the inspector bluntly stated, 1,110 feet is 

“a long distance to travel if you are in smoke where you can’t see . . . a long way to go if you are 

crawling or dragging an injured guy.” Tr. 31-32. 

 This testimony constitutes substantial evidence supporting the Judge’s conclusion that 

the added distance of 110 feet would cause “additional and possibly critical delays” in miners 

reaching the refuge chamber in the event of an emergency.16 37 FMSHRC at 25-26. Such delays 

establish the requisite “hazard” under step 2 of Mathies.

ICG points to Rushton Mining as an instance where the Secretary failed to establish that a 

violation of an emergency standard contributed to a hazard. 11 FMSHRC 1432 (Aug. 1989). 

However, the case is clearly distinguishable. Rushton involved a violation of 30 C.F.R. 

§ 75.1704-2(a), which requires that escapeways follow the safest direct practical route. 

Affirming the Judge’s non-S&S determination, the Commission found that not only had the 

Secretary failed to show that any aspects of the cited route posed a hazard, but to the contrary, 

Rushton had demonstrated that the cited route was particularly safe for travel. Id. at 1436-37. 

Here, there is no counter-evidence that the violation was, in fact, non-hazardous. 

As to the third and fourth Mathies steps, the Judge concluded that serious or fatal injuries 

were likely to result for the 17 miners working on the section. 37 FMSHRC at 26. We find that, 

given the nature of the hazard involved, substantial evidence supports the Judge’s finding. The 

inspector testified that he designated the gravity as fatal because “if they had blown up the 

section, to me it was unlikely that the guys would have been able to get to . . . the refuge 

alternative.” Tr. 35-36. Assuming the occurrence of a disaster, the disaster would be fatal “if 

[miners] couldn’t get to the refuge alternative.” Tr. 54. In essence, the inspector’s testimony 

demonstrated that in worst case scenarios (which at this mine could involve an explosion), the 

inability to reach a refuge chamber in the event of such an emergency was reasonably likely to 

 14 In this context, the inspector noted that while the refuge chamber was located 1,100 

feet from the nearest working face, miners working at the other side of the section would be 

almost 2,000 feet from the refuge chamber. Tr. 32. 

15 ICG notes a lack of documentation regarding a history of methane and ignition 

problems at the mine. However, the Judge credited the inspector’s testimony that the mine did, in 

fact, have a history of methane and ignition problems. 37 FMSHRC at 26. It is undisputed that 

the mine was subject to spot inspections for excess methane liberation. 

 

16 Our dissenting colleague alleges that the “majority does not discuss any distance 

between 1 foot and 110 feet at which the distance becomes S&S. That failure is significant.” Slip 

op. at 13 n. 3. However, we need not speculate as to what intermediate distance may or may not 

be S&S. Our decision is constrained by the facts of record, which have established that the 

shelter was at least 110 feet further than the standard permits from the nearest working face. We 

reiterate that whether a particular violation is S&S must be determined on a case-by-case basis, 

considering the particular facts and circumstances established in the record. 

38 FMSHRC Page 2480
result in serious or fatal injury. Since refuge chambers are meant to ensure survival during an 

emergency which has created inhospitable conditions, then common sense (as well as the history 

of coal mining disasters) dictates that an inability to reach the refuge chamber threatens miners’ 

survival. 

We have previously affirmed S&S findings for violations of emergency standards based 

on similar evidence and reasoning. In Big Ridge, which involved a lifeline violation, we found 

that the Judge properly relied on the inspector’s testimony that it would be difficult to cross a 20 

foot gap in the lifeline during smoky conditions, and that during an emergency miners become 

disoriented such that a directional lifeline is essential to avert disaster. 36 FMSHRC 1115, 1119 

(May 2014). The Commission concluded that “[t]he hazard of a delayed escape or no escape at 

all due to a missing lifeline in an emergency is reasonably likely to result in serious or fatal 

injuries.” Id.; see also Black Beauty, 36 FMSHRC at 1125. Similarly, here, we find that the 

Judge properly relied on testimony to the effect that it would be difficult to travel the additional 

distance to reach the refuge in emergency conditions which create poor visibility and risk of 

injury, and that reaching the refuge is essential to avert disaster. The hazard of being unable to 

reach the refuge was reasonably likely to result in serious or fatal injuries. Hence, the Secretary 

has proven the third and fourth steps of Mathies.

 ICG has expressed concern regarding the inspector’s statement that he would consider 

any refuge located more than 1000 feet from the face at this mine to be an S&S violation, even if 

it only exceeded the maximum by one foot. Tr. 46-47. However, the violation before us here was 

not trivial, and involves an 11% deviation from the allowable maximum distance in a mine with 

excess methane and working equipment near the face, such that any emergency requiring use of 

the refuge may well create poor visibility, injury and disorientation. Under these circumstances, 

we find that substantial evidence supports the Judge’s determination that this violation 

sufficiently contributed to a hazard which was reasonably likely to result in serious injury. 

As a final matter, we are unpersuaded by ICG’s argument that the presence of SCSRs 

was a mitigating factor. There were caches of SCSR units within several hundred feet of the 

working face, all rated for an hour’s use. Tr. 90-93. ICG claims they provided enough air for 

miners to travel the extra 110 feet to the refuge alternative, reducing the likelihood of injury in 

the event of an emergency. However, the Commission has repeatedly found that redundant safety 

measures do not mitigate S&S findings for violations of emergency standards. See Small Mine 

Development, 37 FMSHRC at 1900-01, citing Cumberland Coal Res., 33 FMSHRC at 2369, 

citing Buck Creek Coal, Inc., 52 F.3d at 136. In affirming Cumberland Coal, the D.C. Circuit 

explained that “assuming the existence of an emergency in which a lifeline would be necessary 

 

38 FMSHRC Page 2481
also assumes an emergency in which all of the redundant safety measures . . . have failed.” 717 

F.3d at 1028-29. Here, the same principle applies.17

III. 

Conclusion 

 For the foregoing reasons, we affirm the Judge’s determination that the refuge alternative 

violation was S&S. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner 

 17 While the dissent criticizes our reliance on Buck Creek and subsequent cases postNewtown, slip op. at 19 n.13, our decision does not rest solely on the law, but also on the facts 

found by the Judge. As we’ve noted, slip op. at 3, citing 37 FMSHRC at 26, the Judge accepted 

the inspector’s testimony about the limits of the SCSRs, which were not responsive to all of the 

hazards that would attend the contemplated emergency. 

38 FMSHRC Page 2482
Commissioner Althen, dissenting: 

The decision in this case rests upon the testimony of one mine inspector who was not an 

expert on mine emergencies and who did not testify that he had any expertise in emergencies or, 

indeed, had any firsthand experience in the real world or laboratory conditions with a mine 

emergency. That inspector, in turn, did not testify to any conditions in the mine or specific 

circumstances related to the mine that could cause a 110-foot violation of section 75.1506(c)(1) 

to be significant and substantial (“S&S”). Instead, the inspector based the citation on his 

personal, untrained, and non-experiential belief that a refuge chamber located any distance 

beyond 1,000 feet is S&S. The Secretary bears the burden of proof in every case. One inspector’s 

personal, untrained, non-expert opinion in which he testifies that one foot beyond 1,000 feet is 

automatically S&S, and does not support his testimony with any evidence regarding the 

conditions at the mine, does not carry the Secretary’s burden of proof. Therefore, I respectfully 

dissent. 

DISCUSSION 

In cases involving an emergency standard, the Commission assumes the occurrence of 

the emergency to evaluate whether a violation of an emergency standard is S&S within the 

mining context of the specific standard. Assuming the occurrence of an emergency does not 

mean assuming that the hazard at which the standard is directed is reasonably likely to occur or 

that a violation is automatically S&S. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2367, 

2369 (Oct. 2011), aff’d, 717 F.3d 1020 (D.C. Cir. 2013). Judges must make the S&S 

determination through application of the steps identified in the Commission’s recent decision in 

Newtown Energy, Inc., 38 FMSHRC __, slip op. at 4-8, No. WEVA 2011-283 (Aug. 29, 2016). 

Newtown effectively revises the four steps set forth in Mathies Coal Co., 6 FMSHRC 1 

(Jan. 1984), to identify more precisely each of the four steps involved in making an S&S 

determination originally set forth in Mathies. Under the Commission’s newly formulated 

Newtown test, the four steps of the S&S analysis require determinations of whether: 

(1) there has been a violation of a mandatory safety standard;

(2) based upon the particular facts surrounding the violation, there

exists a reasonable likelihood of the occurrence of the hazard

against which the mandatory safety standard is directed;

(3) based upon the particular facts surrounding the violation, the

occurrence of that hazard would be reasonably likely to result

in an injury; and

(4) any resultant injury would be reasonably likely to be

reasonably serious.

See Newtown, slip op. at 4-8.18

18 Thankfully, Newtown ends any confusion over whether we assume the occurrence of a 

hazard at step two. We do not. The Secretary must prove the likelihood of such an occurrence to 

 (continued...) 

38 FMSHRC Page 2483
Section 75.1506(c)(1) addresses the danger that, in an emergency, a miner might not be 

able to use escapeways to exit the mine quickly and safely. The section, therefore, aims at 

providing the miner a place of refuge until the miner is able to exit the mine safely. Thus, the 

hazard addressed by section 75.1506(c)(1) is that a miner could not reach a refuge chamber in 

case of an emergency. 

Here, the operator did not contest the fact of a violation. Consequently, we move directly 

to the second step of the Newtown test, in which we determine whether, under the particular facts

surrounding the violation, the Secretary proved by a preponderance of the evidence that the 

violation made it reasonably likely that in the event of an emergency a miner could not reach the 

refuge chamber. It is at this step that the Secretary’s case and the majority’s analysis falter. 

The inspector testified that the mine was subject to section 103(i) of the Mine Act, which 

requires spot inspections of the subject mine based upon its liberation of methane. Tr. 16. 

Obviously, the conditions likely to result from the occurrence of an emergency are relevant to the 

S&S determination. An analysis of those conditions includes, most importantly, the particular 

context of the mine and the numerous possible emergencies that may occur at that particular 

mine.19 However, the possibility of the occurrence of an emergency itself does not bear upon the 

likelihood of reaching a refuge if an emergency does occur. As my colleagues correctly state, 

“assuming the existence of an emergency is not the same as assuming the violation is S&S.” Slip 

op. at 4. 

18 (...continued) 

the requisite degree of reasonable likelihood. As a result, the long ignored step two factor is now 

critical in every S&S analysis. The recently articulated Newtown test is the metric through which 

Administrative Law Judges must make step two determinations. 

19 The majority appears to analyze the case from a supposition that the only emergency 

that could occur at this mine is a face explosion. Therefore, it assumes a miner facing an 

emergency would have to travel an “extra” 110 feet to reach the shelter. Of course, emergencies 

may arise from many locations other than the face. Indeed, a specialized research study 

conducted for the National Institute of Occupational Safety and Health (“NIOSH”) in connection 

with NIOSH’s comments on the proposed section 75.1506(b) regulation found that the 

placement of the refuge is important to many different scenarios. Foster-Miller, Inc., Report No. 

NSH-080020-1864, Refuge Alternatives in Underground Coal Mines, vols. 1, 2 (2008) (“Refuge 

Chamber Report”). For example, the Darby mine explosion was outby the face and NIOSH’s 

contract researcher found that, at Darby, it would have been preferable for the refuge chamber to 

have been located 2,000 feet from the face. Id. vol. 2, at 92. In emergencies, therefore, a refuge at 

1,110 feet from the face actually may be 110 feet closer to the miners. The point here is that nonexperts, such as the inspector in this case, have little understanding of the placement of a refuge 

chamber or the various emergencies that might occur at a given mine, so specific testimony 

about the actual mining conditions is critical to judicial analysis. Indeed, even this inspector 

recognized that, tragically but typically, a face explosion fatally injures all miners at the face 

immediately. Tr. 35-36. 

38 FMSHRC Page 2484
My colleagues and I agree that S&S determinations must be based on the particular 

circumstances involved in the specific violation. Id. The entire Commission, therefore, accepts 

that the inspector must take into account the particular circumstances at the mine and explain 

those circumstances in his testimony. Such violations are not per se S&S. Elsewise, the 

inspector’s insensible opinion in this case that 1 foot beyond 1,000 feet is “probably”—that is, 

presumptively—S&S would become sensible. Tr. 47.20

The Secretary did not qualify the inspector as an expert in mine emergencies. Although 

the inspector had many years of work in mines as an hourly employee, the inspector did not 

demonstrate or claim to have any experience in real or simulated mine emergencies or to have 

ever had any instruction, training, or expertise in emergencies. The Secretary does not contend 

that the inspector had any expertise in mine emergencies. His experience was as an hourly 

employee operating mining equipment and a few years as a mine inspector.21 

There is no evidence the inspector encountered an emergency during his mining career. 

In fact, this is the only time he issued a citation related to the location of a refuge chamber. Tr. 

45. Additionally, he did not identify any education, training, or experience in emergencies. His

opinion, therefore, does not constitute, and was not offered as, an expert opinion on the location

of refuge chambers.22

This brings us to the nub of this case. Evidence must prove that, in an emergency, miners 

would not be reasonably likely to be able to reach the refuge chamber. Notwithstanding the 

majority’s conjured 11% fiction, see supra note 3, that proposition cannot be assumed. There is 

20 The majority does not discuss any distance between 1 foot and 110 feet at which the 

distance becomes S&S. That failure is significant; it further demonstrates acceptance that the 

Commission must evaluate the particular facts at the specific mine. Indeed, the majority does not 

cite any fact about this “particular mine.” It finds the violation is not “per se” S&S, but then 

invents completely out of whole cloth a notion that an eleven percent (11%) overage is S&S. It 

does this even though, as we will see, safety authorities recommended that if MSHA adopted a 

requirement for only one refuge near the face, the distance should be 1,500 feet—that is, fifty 

percent (50%) beyond 1,000 feet. The majority does not provide any basis for 11%. How about 

10.9%? Or 11.1%? Or 5%, 10%, or 15%, or the more than 50% an expert study recommended? 

See infra p. 14. Nonetheless, the majority explains the use of 11% as “simple” mathematics. Slip 

op. at 6 n.10. “Arbitrary” (random choice or personal whim) and “capricious” (given to 

unaccountable changes) seem far more descriptive. 

21 The fact that the inspector worked for many years running equipment such as a roof 

bolter or mining machine and then became a federal mine inspector speaks very well for him as 

an individual. Obviously, it does not qualify him as an expert regarding the placement of refuge 

chambers. 

22 While inspectors need not be experts to testify knowledgeably, this inspector’s lack of 

expertise, experience, and training regarding the placement of refuge chambers necessarily 

detracts from the persuasive weight of his testimony. 

38 FMSHRC Page 2485
no reasonable argument that a 110-foot overage is automatically or presumptively S&S. Indeed, 

governing and leading authorities such as MSHA’s regulations, state laws, the rulemaking record 

for section 75.1506(c)(1), and opinions of National Institute of Occupational Safety and Health 

(“NIOSH”) and expert studies permit and/or suggest placement of refuge chambers at distances 

further than 1,110 feet from the face. Other MSHA mandatory safety standards and state laws 

permit placement of refuges substantially beyond 1,110 feet, and respected government experts 

recommended placement of refuges at distances exceeding 1,110 feet. 

 For example, 30 C.F.R. § 57.11050(b) requires that refuge chambers in metal/non-metal 

mines must be within 30 minutes of the working place rather than within a prescribed distance 

requirement. Such a time requirement permits in underground metal and nonmetal mines 

placement of refuge chambers more than 1,110 feet from the face. Section 11.09 of Illinois’ Coal 

Mining Act requires chambers within 3,000 feet of each working section of a mine—three times 

further than the federal regulation. 225 Ill. Comp. Stat. Ann. 705/11.09. The Illinois statute does 

not undercut the validity of the federal regulation, but it destroys an arbitrary notion that a 

distance of 110 feet (or 11%) over 1,000 feet is S&S without more facts. 

 Going further, in a report summarizing research required under section 13 of the Mine 

Improvement and New Emergency Response (“Miner”) Act of 2006, Pub. L. No. 109-236, 

NIOSH stated, 

[T]he maximum distance from a working section to the refuge 

chamber or in-place shelter should be based on projected travel 

time rather than actual travel distance. Unless there is a 

compelling reason otherwise, the refuge alternative should be 

located within approximately 30–60 minutes from the face 

under the expected travel conditions, assuming smoke-filled 

entries and a directional lifeline. 

Office of Mine Safety and Health, Dep’t of Health and Human Servs., Research Report on 

Refuge Alternatives for Underground Coal Mines 8 (2007) (emphasis added) (footnote omitted); 

see also Nat’l Inst. for Occupational Safety and Health, Comment on Proposed Rule on Refuge 

Alternatives for Underground Coal Mines (Aug. 18, 2008). 

 In addition, NIOSH contracted with Foster-Miller, Inc. to perform a comprehensive study 

of refuge chambers in connection with NIOSH’s comments on proposed section 75.1506(b). The 

contract included an exhaustive review of 42 mine disasters. The study concluded that either 

there should be two refuge chambers at nominal distances of 1,000 and 2,000 feet from the face 

(the chamber locations would range from placement at 500 and 1,500 feet to 1,500 and 2,500 

 

38 FMSHRC Page 2486
feet), or, if only one chamber was required, it should be 1,500 feet from the face—that is, 390 

feet farther than 1,110. Refuge Chamber Report vol. 1, 80, 153.23 

The majority incorrectly asserts that the foregoing discussion constitutes a “re-weighing 

of the rulemaking record.” Slip op. at 7 n.12. Rather than reweighing the rulemaking record, the 

cited authoritative federal regulations, state laws, NIOSH comments, and expert reports, much of 

it from the rulemaking record itself, support my agreement with the majority that an excess 

distance of 110 feet is not a per se violation. Absent an understanding of the clear public record 

and scientific evidence upon which MSHA, state agencies, and expert authorities accept and/or 

recommend distances far in excess of 1,110 feet, one might be lulled into the inspector’s per se 

analysis—namely, that 1,001 feet is S&S. The cited rules, statutes, and expert opinions 

demonstrate that, as the majority agrees, the distance of 1,110 feet is not automatically S&S and 

that such a finding requires evidence of the particular facts in the specific mine. Therefore, we 

now turn to the absence of any evidence about the conditions in this mine. 

The ultimate question for review is whether a non-expert opinion given by one ordinary 

inspector who opined that one foot too far is S&S and who did not testify to any particular 

circumstances at the mine, standing alone, is sufficient to carry the Secretary’s burden of proof. 

The majority concedes that the non-expert, predetermined opinion of the inspector is the sole 

reason for their affirmance of the S&S designation. Slip op. at 7-8. I find that opinion 

insufficient.24 

The inspector provided no testimony relevant to the circumstances at this specific mine. 

Equally importantly, the inspector implicitly, but clearly, based the S&S finding upon his 

personal belief that any distance beyond 1,000 feet is an S&S violation. Stated simply, for the 

23 The majority asserts that MSHA changed the proposed rule to 1,000 feet “after 

extensive public input.” Slip op. at 7. In fact, MSHA received 39 comments. Of those, only three 

commenters suggested a 1,000-foot minimum: the United Mine Workers of America 

(“UMWA”), the West Virginia Office of Miners’ Health, Safety & Training (“WVOMHST”), 

and Senator Robert Byrd who simply submitted, but with his enormous political influence, the 

WVOMHST comment. The UMWA’s most specific comment identified the Darby mine 

explosion as exemplifying the difficulty of moving through smoke and debris. As noted 

elsewhere, the Darby explosion was outby the face. At Darby, a refuge chamber at 2,000 feet 

would have been preferred. This does not undercut the validity of the final rule promulgated by 

the agency. However, it does show that the extra 110 feet at issue in this case cannot be 

presumptively a significant and substantial violation as in the specific explosion cited by the 

UMWA, 2,000 feet from the face would have been a preferable location. 

24 The majority states that I “rue”—that is, regret or am concerned about—“the lack of 

record evidence on points such as ceiling heights, the configuration of exit routes, and the 

presence of beltlines outby the face.” Slip op. at 7. They are correct. I think the lack of any 

evidence about the particular facts of the mine to support an S&S citation is a problem, a very 

big problem. Indeed, the absence of evidence is an insurmountable problem. 

38 FMSHRC Page 2487
inspector, any distance beyond 1,000 feet was a per se S&S violation—a position that does not 

apply the correct standard and that the entire Commission rejects. 

 The inspector did not testify generally or specifically about operating conditions or 

operations in the mine before or at the time of his inspection. He did not testify about seam or 

ceiling heights; floor, rib, or roof conditions; ventilation; any mining being conducted during the 

relatively brief period of the violation; the straightness of exit routes; any operations outby the 

1,000-foot mark; any beltlines, belt transfer points, power stations, etc., outby the face; or any 

other facts. He did not identify any locations other than the face at which an explosion, fire, or 

other emergency might occur or, given the composition of the mine, the conditions that would be 

reasonably likely to exist in the event of emergencies at varying locations.25 In light of the 

absolute absence of testimony about the conditions of the mine, likely places for emergencies, or 

any other particular facts, it simply cannot be said the inspector’s opinion demonstrated 

consideration of the circumstances. Without any evidence related to the conditions in the mine, 

the inspector’s bare opinion underlain by a misunderstanding of the law does not carry the 

burden of proof. 

 Essentially, the inspector adopted a per se or presumptive S&S approach and, therefore, 

applied the wrong standard in issuing an S&S citation. There is no issue of credibility related to 

the inspector’s testimony. Reading the transcript, no one can doubt that the inspector’s honest 

and actual reason for citing the violation as S&S without any testimony regarding operating 

conditions in the mine was his personal belief that any distance beyond 1,000 feet is S&S. 

Consequently, the basis for the S&S citation is a personal belief of the inspector that any excess 

distance, of any dimension, is a per se S&S violation—a position the majority finds legally 

unacceptable. 

 As the majority points out, the Judge did seize upon one phrase—“at this mine”—in the 

inspector’s testimony. Slip op. at 2. However, in that passage, it is clear that the reference to “at 

 

 25 In light of the inspector’s reference to methane, it appears his concern for even an extra 

one foot of distance springs from a concern about miners located at the face if an explosion 

occurs. Of course, emergencies may arise from many locations other than the face. See supra

note 2. Such tunnel vision betrays a lack of expertise. Non-experts may view face explosions as 

the only concern with respect to placement of refuge chambers, but face explosions are far from 

the only consideration in the location of refuge chambers. In refusing to recognize that fact, slip 

op. at 6 n.9, the majority chooses to ignore tragedies where miners retreated and a reachable 

refuge would have saved lives. 

38 FMSHRC Page 2488
this mine” was based upon the release of methane in the mine.26 Therefore, the reference to “at 

this mine” is a reference to the mine’s release of methane and not to the likelihood of reaching a 

refuge chamber. 

Below, I discuss particular parts of the testimony in order to demonstrate the inspector’s 

per se analysis. Reading the transcript, no one can misunderstand the inspector’s frank testimony 

that it was his personal belief that this was a per se violation—that is, any distance beyond 1,000 

feet is S&S. The inspector testified that he disagreed with the substance of the regulation, 

opining that the regulatory standard of 1,000 feet is too far from the face: 

Q. Okay. You think 1,000 feet is too far, correct?

A. I do, yes.

Tr. 47. 

The inspector testified that he would have cited the violation as S&S if the refuge 

chamber were 1 foot beyond 1,000 feet: 

Q. You would have considered this S and S if it had been 20

feet too far, wouldn’t you?

A. Yes.

Q. Or ten feet?

A. Yes.

Q. Or one foot?

A. Yes.

Tr. 46-47. 

26 The passage is: 

Q. Okay. So in this case or any other case, sir, you

would consider it to be S and S, wouldn’t you? 

A. If it exceeded 1,000 feet, probably.

Q. Okay.

A. At this mine. I mean, this mine has a history of

methane. They have got a history of ignitions. They have had 

withdrawal orders issued, 107(a) issued for excess of methane. 

So this mine has a history. 

Tr. 47. Separately, after stating his disagreement with the 1,000-foot standard, the inspector does 

say that “[e]verything was considered on this violation, not just the distance.” Tr. 48. 

Immediately thereafter, however, he states such considerations were “not just this mine,” thereby 

reinforcing his testimony that he considered any distance over 1,000 feet to be a generic S&S 

violation and “not just at this mine.” Id. 

38 FMSHRC Page 2489
Nowhere does the inspector base his opinion upon the particular conditions in this 

specific mine should an emergency occur. As noted above, and not disputed by my colleagues, 

the inspector did not provide any evidence about specific conditions in this mine or any 

conditions causing one foot to be “too far.” In the absence of any testimony about the conditions 

actually present in the mine, a stray comment about the citation being “at this mine” does not 

provide any factual support for the S&S designation. Indeed, the inspector demonstrates that he 

did not believe it necessary to take the particular facts at the mine into account in issuing the 

citation as S&S. He testified: 

Q. Okay. And that has nothing to do with the actual conditions 

in this mine, it is just your opinion that a violation of this 

standard is significant and substantial, correct? 

A. In this case. 

Q. Okay. You think 1,000 feet is too far, correct? 

A. I do, yes. 

Q. Okay. So in this case or any other case, sir, you would 

consider it to be S and S, wouldn’t you? 

A. If it exceeded 1,000 feet, probably. 

Tr. 47 (emphasis added). 

 The “probably” is without any explanation and is at odds with his testimony that 1 foot 

over the 1,000 feet is S&S and that the baseline standard of 1,000 feet is too far. This honest 

inspector testified that he marked the citation S&S because the refuge chamber was more than 

1,000 feet from the face without any evidence that he considered any particular factor at the mine 

at the time of violation. 

 Here, other than stating his personal, non-expert view that 1,000 feet is “too far” so any 

foot beyond 1,000 feet is S&S, the inspector did not support the citation with any testimony 

about the specific conditions at this mine. The inspector frankly testified that the only fact he 

considered at this mine was that the mine was on a 10-day spot inspection for methane, Tr. 47, 

which the majority correctly notes is irrelevant to the S&S analysis for this violation. Slip op. at 

4.27

 Based upon the inspector’s failure to discuss specific conditions at this mine, his failure 

to differentiate between this mine and any other mine, and his stated disagreement with the 

standard as promulgated, the inspector’s testimony does not constitute substantial evidence to 

 27 Near the end of their opinion, the majority emphasizes, “[w]e reiterate that whether a 

particular violation is S&S must be determined on a case-by-case basis, considering the 

particular facts and circumstances established in the record.” Slip op. at 8 n.16. I agree. Particular 

facts must be taken into account. Here, the only fact in the record is a non-per se distance of 110 

feet, but the majority upholds a finding that the violation is S&S. The majority’s opinion is 

cognitively dissonant—they juxtapose a repeated emphasis on a need for particular facts with a 

finding made without particular facts. 

38 FMSHRC Page 2490
support a reasonable likelihood that a miner could not reach the refuge. Because the inspector’s 

lay testimony is the only evidence submitted by the Secretary, substantial evidence does not 

support the Judge’s finding.28

 

 28 The majority attempts to distinguish this case from Rushton Mining Co., 11 FMSHRC 

1432 (Aug. 1989), by asserting that “[h]ere, there is no counter-evidence that the violation was, 

in fact, non-hazardous.” Slip op. at 8. In Rushton Mining, the Commission concluded, “the 

Secretary has failed to show that the distance, travel time, or any inherent qualities of the cited 

route posed a discrete safety hazard.” 11 FMSHRC at 1436. It is not the operator’s duty to rebut 

the Secretary case when the Secretary’s case fails in the first instance. The majority must not 

actually intend to relieve the Secretary of the burden of proving violations are S&S. Even hinting 

at such a notion, however, imperils a most basic principle upon which due process depends. 

38 FMSHRC Page 2491
CONCLUSION 

The Commission must base its decisions upon the objective application of the proper 

legal standard to the case before us rather than applying our own non-expert preferences and/or 

fears or the predetermined judgment of one non-expert inspector. If the Secretary had provided 

evidence of conditions in the cited mine sufficient to support a reasonable likelihood that miners 

at this mine would not have been able to reach the refuge chamber in an emergency during the 

period of the violation, I would readily concur with my colleagues.29 

Here, however, the entire “proof” offered by the Secretary is the opinion of one witness 

who (1) was not offered as an expert on emergencies, (2) did not testify about any of the 

conditions or operations in the mine that might come into play during an emergency or where 

emergencies might occur other than the face, (3) disagreed with and disavowed the mandatory 

standard, and (4) opined he would find a one-foot violation to be S&S. The unsupported, nonspecific, predetermined testimony of one non-expert does not carry the Secretary’s burden of 

proof. 

I respectfully dissent.30

/s/ William I. Althen 

William I. Althen, Commissioner 

29 I do not find any magic line above 1,000 feet at which the distance either is or is not 

S&S. I would support a finding that a violation of section 75.1506(b) by any distance is S&S if 

substantial evidence supported such a finding. 

30 As a final point, I disagree with my colleagues’ assertion that judges may not consider 

safety measures specifically designed to prevent the occurrence of a hazard in evaluating the 

likelihood of the occurrence of that hazard. See slip op. at 9. At step two, the issue is the 

likelihood of the occurrence of the hazard based upon the particular facts surrounding the 

violation. At step two, preventative measures may make the occurrence of a hazard less than 

reasonably likely. Preventative measures may not be dispositive, but we should consider all 

factors that affect the likelihood of the occurrence of the hazard. Cases cited by the majority 

relate to step three of the Newtown analysis, at which point the Secretary has established the 

reasonable likelihood of the occurrence of the hazard. The existence of extraneous factors that 

militate against the occurrence of the hazard at which the standard is directed, for example, water 

drenched coal accumulations or technical innovations designed to prevent a hazard, are relevant 

to the likelihood that the hazard will occur. 

38 FMSHRC Page 2492
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 7, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On September 26, 2014, the Commission received from 

Kingwood Mining Company, LLC (“Kingwood”) a motion seeking 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). Subsequently, the Secretary requested that the Commission grant 

the operator’s motion to reopen in order to facilitate settlement of the assessments. 

Having reviewed movant’s motion to reopen, we 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. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

KINGWOOD MINING COMPANY, LLC 

Docket No. WEVA 2009-857 

A.C. No. 46-08751-152739

Docket No. WEVA 2009-1131 

A.C. No. 46-08751-159510

38 FMSHRC Page 2493
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. In order to effectuate the settlement 

identified as the basis of the unopposed motion to reopen, the parties should promptly file a 

motion to approve settlement after the Secretary files the petitions for assessment of penalty. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2494
Distribution: 

Robert H. Beatty, Jr. 

Lorna M. Waddell 

Dinsmore & Shohl LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, West Virginia 26501 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 2495
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he 

does not oppose the motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

STREAM CONSTRUCTION 

Docket No. CENT 2015-212-M 

A.C. No. 41-00906-359327

38 FMSHRC Page 2496
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2497
Distribution: 

Chris Hamilton, President 

Stream Construction 

1814 Holly Road 

Corpus Christi, TX 78417 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2498
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

BAYER CONSTRUCTION CO. 

Docket No. CENT 2015-255-M 

A.C. No. 14-01666-366206

38 FMSHRC Page 2499
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2500
Distribution: 

Stan Hambright 

Safety Manager 

Bayer Construction Company, Inc. 

P.O. Box 889 

Manhattan, Kansas 66505-0889 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2501
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On January 8, 2015, the Commission received from 

Cumberland Coal Resources, LP (“Cumberland”) a motion seeking to reopen a penalty 

assessment that had appeared to become a final order of the Commission pursuant to section 

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

MSHA records indicate that the proposed assessment was mailed via United States Postal 

Service (“USPS”) to the operator on August 13, 2014 to the operator’s address of record on the 

legal ID report. Cumberland claims it never received a proposed penalty assessment from the 

Secretary. USPS did not record a date of delivery but the Secretary estimated that the proposed 

assessment was delivered on August 16, 2014. On September 15, 2014, the proposed assessment 

was deemed a final order of the Commission, when it appeared that the operator had not filed a 

Notice of Contest within 30 days. 

The Secretary does not oppose the request to reopen and admits that it has no record 

confirming delivery of the proposed assessment. In this regard, the USPS online delivery report 

does not contain either a successful or non-successful delivery notation and the Secretary does 

not have any record of the proposed assessment being returned undelivered. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

CUMBERLAND COAL RESOURCES, LP 

Docket No. PENN 2015-101 

A.C. No. 36-05018-358678

38 FMSHRC Page 2502
Having reviewed Cumberland’s request and the Secretary’s response, we conclude that 

the proposed penalty assessment did not become a final order of the Commission because the 

operator never had an opportunity to timely contest the proposed assessment. Section 105(a) 

states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed 

assessment of penalty . . . the citation and the proposed assessment of penalty shall be deemed a 

final order of the Commission.” 30 U.S.C. § 815(a). Here, there is no evidence that the operator 

ever received the proposed assessment at issue. This obviates any need to invoke Rule 60(b). 

Accordingly, the operator’s motion to reopen is moot. 

We deem the operator’s motion a contest of Citation Nos. 7028183, 7023620, 7023621, 

7023622, 7027832, 7030058 and 7030059. Accordingly, consistent with Rule 28, the Secretary 

shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 

C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2503
Distribution: 

Patrick W. Dennison, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

Suite 1500 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2504
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

SPRAGUE STONE 

Docket No. WEST 2015-284-M 

A.C. No. 05-04013-362626 A9486

38 FMSHRC Page 2505
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2506
Distribution: 

Matthew J. Sprague & Amanda Sprague, Owners 

Sprague Stone 

116 Sprague Avenue 

Berthoud, CO 80513 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2507
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

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

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). The Commission has received two motions from the operator 

seeking to reopen two penalty assessments which had become final orders of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motions. 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEST 2015-342-M and WEST 2015-343-M involving similar procedural 

issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

SOLVAY CHEMICALS, INC.1 

Docket No. WEST 2015-342-M 

A.C. No. 48-01295-363072

Docket No. WEST 2015-343-M 

A.C. No. 48-01295-355137

38 FMSHRC Page 2508
Having reviewed movant’s unopposed motions to reopen, we reopen these matters and 

remand them to the Chief Administrative Law Judge for further proceedings pursuant to the 

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

The granting of these motions is not precedential for the consideration of any other 

motion before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2509
Distribution: 

Rowdy Heiser, Safety Manager 

Solvay Chemicals, Inc. 

400 County Road 85 

Green River, WY 82935 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2510
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 19, 2016 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

KINGSTON MINING, LLC 

Docket No. WEVA 2015-318 

A.C. No. 46-08932-361675

38 FMSHRC Page 2511
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2512
Distribution: 

Arthur M. Wolfson, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1500 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 2513
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. CENT 2015-480-M 

v. A.C. No. 41-04793-379976

CYPRESS POINTE INC. 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

38 FMSHRC Page 2514
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2515
Distribution: 

James S. Carter, President 

Cypress Pointe Incorporated 

1490 Burl Ivy Way 

Hemphill, TX 75948 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2516
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. LAKE 2015-554-M 

v. 

A.C. No. 11-02873-376723

C & H GRAVEL COMPANY 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

38 FMSHRC Page 2517
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2518
Distribution: 

Charles Heuerman, President 

C & H Gravel Company 

14046 N 1600th Street 

Teutopolis, IL 62467 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2519
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. LAKE 2015-588 

v. A.C. No. 12-02388-382364 

GIBSON COUNTY COAL, LLC 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

38 FMSHRC Page 2520
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2521
Distribution: 

Tayler H. Fields, Esq. 

Gibson County Coal, LLC 

1146 Monarch Street 

Lexington, KY 40513 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2522
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2015-836 

v. A.C. No. 46-09086-376033 

BRODY MINING, LLC 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On June 29, 2015, the Commission received from Brody 

Mining, LLC (“Brody”) a motion to reopen Docket No. WEVA 2015-836. On January 19, 2016, 

Brody requested to withdraw its motion. 

We hereby grant Brody’s motion to withdraw in Docket No. WEVA 2015-836. 

Accordingly, this case is dismissed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2523
Distribution: 

Michael T. Cimino, Esq. 

Jackson Kelly, PLLC 

1600 Laidley Tower 

P.O. Box 3553 

Charleston, WV 25322 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2524
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2015-844 

v. A.C. No. 46-08637-378080

GATEWAY EAGLE COAL 

 COMPANY, LLC 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On July 7, 2015, the Commission received from Gateway

Eagle Coal Company, LLC (“Gateway”) a motion to reopen Docket No. WEVA 2015-844. On

April 12, 2016, Gateway requested to withdraw its motion.

We hereby grant Gateway’s motion to withdraw in Docket No. WEVA 2015-844. 

Accordingly, this case is dismissed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2525
Distribution: 

Katrina N. Bowers, Esq. 

Steptoe & Johnson, PLLC 

P.O. Box 1588 

Charleston, WV 25326-1588 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2526
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2015-900 

v. A.C. No. 46-06843-380721

SALLY ANN COAL COMPANY, INC. 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

October 20, 2016

38 FMSHRC Page 2527
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2528
Distribution: 

Melissa M. Robinson, Esq. 

Jackson Kelly, Esq., PLLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2529
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

October 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. YORK 2015-123-M 

v. A.C. No. 19-00598-381455 

P.A. LANDERS, INC. 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

38 FMSHRC Page 2530
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2531
Distribution: 

Patrick W. Dennison, Esq. 

Jackson Kelly, PLLC 

401 Liberty Avenue 

Pittsburgh, PA 15222-1000 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450

38 FMSHRC Page 2532
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

October 25, 2016

SHAWN HIRT 

 v. Docket No. CENT 2015-598-DM 

GARY SERVAES ENTERPRISES 

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

ORDER 

BY: Jordan, Chairman; Young and Althen, Commissioners 

A petition for discretionary review was filed by Gary Servaes Enterprises (“Servaes”) on 

October 3, 2016. This petition was filed pursuant to section 113(d)(2) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 823(d)(2). That section provides that review of a 

decision of an Administrative Law Judge may be granted upon specified grounds and upon the 

affirmative vote of two Commissioners. Such review is discretionary. 30 U.S.C. § 823(d)(2)(A). 

A threshold issue in this case is whether the petition was timely filed. Pursuant to 30 

U.S.C. § 823(d)(2)(A)(1) and Commission Procedural Rule 70, 29 C.F.R. § 2700.70, a petition 

for discretionary review must be filed within 30 days after issuance of a Judge’s decision. The 

Judge’s decision was issued on August 24, 2016. Any petition for discretionary review was due 

30 days thereafter, on September 23, 2016. On September 30, 2016, Servaes filed a motion for 

leave to file its petition for discretionary review of the Judge’s decision and order out of time. 

Thereafter, on October 3, 2016, the fortieth day after the issuance of the Judge’s decision,1

Servaes filed its petition, and we issued a contingent direction for review, pending consideration 

of this motion and pending consideration of the merits of the petition. 

In its motion, Servaes explains that, after the Judge issued her opinion, it mistakenly filed 

a petition for review with the United States Court of Appeals for the Tenth Circuit, thereby 

completely bypassing the Review Commission. It alleges, without any proof, that after filing 

with the Tenth Circuit, its counsel phoned the Commission’s docket office and was told that “the 

Petition was correctly filed in the Court of Appeals.” Mot. at 2-3. It also alleges that no notice 

of Commission review procedures was attached to the Judge’s decision. Id. at 2. Servaes further 

argues, without support, that section 106(a)(1) of the Mine Act, 30 U.S.C. § 816(a)(1), does not 

reference the need for Commission review prior to filing a petition for review in a court of 

appeals, and that section 113(d), 30 U.S.C. § 823(d), does not require such a filing with the 

Commission as a condition precedent to filing in a court of appeals. Id. at 3-4.

1

 The decision of an Administrative Law Judge becomes the final decision of the 

Commission 40 days after its issuance unless within that period the Commission directs review. 

30 U.S.C. § 823(d)(1). 

38 FMSHRC Page 2533
The Commission has held that it may consider a late-filed petition for review for good 

cause shown. See Duval Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981); Kopper Glo 

Mining, LLC, 37 FMSHRC 2717, 2717-18 (Dec. 2015); McCoy v. Crescent Coal Co., 2 

FMSHRC 1202, 1204 (June 1980). In addition, we note that the United States Supreme Court 

and the federal courts of appeals often apply the concept of “equitable tolling” to requests to 

excuse missed deadlines. See, e.g., Menominee Indian Tribe of Wisconsin v. United States, 136 

S.Ct. 750, 755 (2016) (holding that to be entitled to equitable tolling of a statute of limitations, a

litigant must establish that he or she has been pursuing rights diligently and that some

extraordinary circumstances stood in the way and prevented timely filing); cf. Rockmore v.

Harrisburg Property, 501 Fed. Appx. 161, 164 (3rd. Cir. 2012).

Servaes has failed to demonstrate good cause for accepting the late filed petition, and has 

not set forth adequate grounds for equitable tolling. The attorney filed in the wrong forum, 

thereby failing to follow the provisions of the Mine Act and the Commission’s plainly written 

procedural rules. Although the attorney sought to correct the error, the filing deadline was 

missed by ten days. It is unfortunate when a party that desires review loses the opportunity due 

to a filing mistake. However, attorneys’ errors are usually imputable to their clients, and 

adherence to the Commission’s clearly identified requirements for review is essential to the 

proper functioning of the Commission. We do not find the circumstances in this case warrant 

relief from the applicable deadlines. 

Based on the foregoing, we deny the motion for late filing, and consequently do not reach 

the merits of the petition for discretionary review. Accordingly, the conditional direction for 

review is hereby vacated.2

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

2

 Commissioner Cohen finds that Gary Servaes Enterprises has established good cause 

for the late filing of the petition for discretionary review, and would, therefore, grant the motion 

for late filing. Commissioner Cohen would also grant the petition for discretionary review. 

38 FMSHRC Page 2534
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 27, 2016

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On July 1, 2015, the Commission received from Bluff City 

Minerals, LLC (“Bluff”) a motion seeking to reopen a penalty assessment proceeding and relieve 

it from the Default Order entered against it. 

On July 30, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in 

response to Bluff’s failure to answer the Secretary of Labor’s April 25, 2014 Petition for 

Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order 

on September 2, 2014, when it appeared that the operator had not filed an answer with the Judge 

within 30 days. 

Bluff claims that it timely responded to the Order to Show Cause on August 14, 2014, 

and filed an answer to the Secretary’s petition. The parties then continued to litigate the case 

until June 15, 2015, when Administrative Law Judge Alan Paez’s law clerk informed them that 

the files showed that the case had been administratively closed. The records also indicated that 

the citation had been paid. Bluff states that it may have inadvertently paid the penalty in response 

to a phone call from MSHA informing it that penalties were delinquent. 

The Secretary does not oppose the request to reopen and confirms receipt of the timely 

answer dated August 14, 2014. However, he notes that there is no indication that the operator 

ever forwarded the answer to the Chief Administrative Law Judge. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

BLUFF CITY MINERALS 

Docket No. LAKE 2014-0393-M 

A.C. No. 11-00122-347386

38 FMSHRC Page 2535
30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

 In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

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

other reason justifying relief. 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal 

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

 

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

we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is 

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2536
Distribution: 

Steelman, Guant & Horsefield 

Attn: Ryan D. Seelke 

901 Pine Street, Suite 110 

Rolla, MO 65401 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 2537
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710. 

October 27, 2016 

 

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

 

ORDER

BY: Jordan, Chairman; Young, and Althen, Commissioners 

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

801 et seq. (2012) (“Mine Act”). On October 14, 2015, the Commission received from Jesse 

Creek Mining, LLC. (“Jesse Creek”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

 

 On August 26, 2015, the Chief Administrative Law Judge issued an Order to Show Cause 

in response to Clayton’s failure to answer the Secretary of Labor’s July 14, 2015 Petition for 

Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order 

on September 28, 2015, when it appeared that the operator had not filed an answer with the 

Judge within 30 days. 

Jesse Creek claims that it failed to timely answer the Petition for three reasons: 1) the 

safety director at the mine was reassigned; 2) an employee inadvertently failed to properly record 

receipt of the Petition, which caused the operator to inaccurately record the deadline for 

answering the Petition in a timely manner; and 3) counsel for the operator never received the 

Petition and has no record of ever receiving it. The Secretary does not oppose the request to 

reopen. However, he notes that the Petition was clearly mailed and delivered to both the operator 

and its counsel. He states that his decision not to oppose reopening in this case should not be 

construed as condoning inadequate office procedures or failure to take Commission procedural 

rules and orders seriously. 

 

 The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 v. 

JESSE CREEK MINING, LLC 

 

Docket No. SE 2015-310 

A.C. No. 01-03422-381588 

38 FMSHRC Page 2538
In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

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

other reason justifying relief. 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal 

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

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

justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is 

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2539
Commissioner Cohen, dissenting: 

I dissent from my colleagues’ decision because I believe that Jesse Creek Mining, LLC 

has not established good cause to reopen this civil penalty case. 

As grounds to reopen the proceeding, Jesse Creek asserts that the Safety Director at the 

mine had been reassigned and therefore was not present to process and answer the Petition for 

Assessment of Civil Penalty received from the Secretary. In addition, the operator stated that an 

“unidentifiable” office employee improperly failed to record receipt of the Petition upon 

delivery. Finally, counsel for the operator asserted that she had never received a copy of the 

Petition. The operator submits that its failure to timely contest the citations at issue in this case 

was an “inadvertent error” within the meaning of Rule 60(b) of the Federal Rules of Civil 

Procedure. Operator’s Motion to Reopen, at 1. 

In my view, Jesse Creek’s three contentions that its failure to timely file the form was the 

result of excusable inadvertence are insufficient, and the operator has not established good cause 

to reopen the proceeding. The Commission has made it clear that where a failure to contest a 

proposed assessment results from an inadequate or unreliable internal processing system, the 

operator has not established grounds for reopening the assessment. Shelter Creek Capital LLC, 

34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 

2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 

FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); 

Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). The same principle applies to an 

operator’s failure to file an answer to a Petition for Assessment of Civil Penalty, as required by 

Commission Rule 29. 29 C.F.R. § 2700.29. Moreover, in examining the operator’s asserted 

justifications for reopening a particular case, the Commission has also considered whether the 

operator has demonstrated a pattern of behaviors that are attributable to inadequate or unreliable 

internal processing systems in other cases. See Oak Grove Res., LLC, 33 FMSHRC 2378, 2379-

80 (Oct. 2011). In the Pinnacle cases, we emphasized that “[r]elief under Rule 60(b) should 

generally not be accorded to an operator who creates and condones a system which predictably 

will result in missed deadlines.” 30 FMSHRC at 1062; 30 FMSHRC at 1067. 

With respect to the Safety Director’s absence, the operator’s proffered explanation is not 

adequate. The Safety Director was “reassign[ed] . . . to the workforce.” Operator’s Motion to 

Reopen, at 1. Such a reassignment is not an unplanned-for departure, but rather something which 

should cause a prudent operator to take precautions and make plans. Jesse Creek had contested 

four S&S citations, and was aware of the fact that the Secretary would file a Petition in the 

future, which would require an answer pursuant to Commission Rule 29. It had a duty to plan for 

the Safety Director’s reassignment, and to ensure that adequate personnel were in place to handle 

future documents, including this Petition, received from the Secretary. The operator’s motion 

does not provide any indication of planning by Jesse Creek to ensure the proper processing of 

penalty Petitions and other MSHA mailings upon the departure of the Safety Director. 

In fact, the motion shows that the operator’s precautions were so inadequate that the 

Petition was mislaid by an office employee who cannot even be identified. If any planning had 

38 FMSHRC Page 2540
been done, Jesse Creek would presumably have known the identity of its employees who 

processed communications from the Secretary only a few months earlier. 

 Further, this inadequate processing system does not appear to be of short duration. The 

Secretary sent a copy of its Petition on July 14, 2015 by UPS overnight delivery, and it was 

never processed by Jesse Creek. Six weeks later on August 26, 2015, Commission Chief Judge 

Lesnick issued an Order to Show Cause. At no time during the 30-day “show cause” period set 

forth in the Order did the operator respond. Jesse Creek provided no explanation for its failure to 

respond to the Judge’s Order. Thus, months after the initial Petition was mislaid, the operator 

was still not properly processing its MSHA-related documents. This provides further indication 

that the operator’s system was legally insufficient. 

 The operator’s assertion that its counsel’s law firm did not receive the Petition is not 

substantiated. The Secretary provided tangible evidence of the delivery of a copy of the Petition 

in the form of a UPS receipt showing delivery to “Boatman” at the office of operator’s counsel. 

Despite this evidence, the operator provided no reply in support of its assertion that counsel’s 

law firm did not receive the Petition. In light of that unrebutted evidence, it is not appropriate to 

rely on the operator’s assertion with respect to the allegation of non-delivery of the Petition to 

counsel. 

 I am further convinced that good cause does not exist to reopen this case because it is not 

an isolated incident. This is not the only time that Jesse Creek has filed a motion to reopen 

claiming the same “inadvertence.” As noted above, the Secretary’s Petition in this case was sent 

by UPS to Jesse Creek on July 14, 2015. A month and a half later, on September 1, 2015, MSHA 

mailed Jesse Creek a proposed assessment which covered seven other citations and orders. Jesse 

Creek failed to timely contest these proposed penalties, and they became final pursuant to section 

105(a) of the Mine Act, 30 U.S.C. § 815(a). Jesse Creek has filed a motion with the Commission 

to reopen these penalties, asserting the exact same reason as asserted here – that the reassignment 

of its Safety Director to the workforce caused a failure to process documents from MSHA. 

Docket No. SE 2016-43. Hence, the operator’s failure to timely answer the instant Petition was 

not the result of a single, isolated breakdown, but part of a long-running issue with Jesse Creek’s 

internal procedures. 

 I conclude from Jesse Creek’s own submissions and the submissions made by the 

Secretary that this is not a matter of mere “inadvertence.” The operator created and condoned an 

unreliable internal processing system, and failed to take reasonable precautions in the course of 

reassigning its Safety Director. Jesse Creek is an above-average sized operator with a large mine 

and presumably has the resources to ensure that correspondence from the Secretary and the 

Commission is properly handled. It failed to do so over a substantial period of time. Therefore, I 

would deny its motion to reopen. 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

38 FMSHRC Page 2541
Distribution: 

Gregory D. Neil 

Safety Director 

Jesse Creek Mining, LLC 

1615 Kent Dairy Rd. 

Alabaster, AL 35007 

Rebecca J. Oblak 

Bowles Rice, LLP 

7000 Hampton Center 

Morgantown, WV 26505 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 2542
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

October 27, 2016 

 

BEFORE: Jordan, Chairman; Young, Cohen, and Althen, 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. (2012) (“Mine Act”). On August 7, 2015, the Commission received from Carson Hill 

Rock Products (“Carson Hill”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the Default Order entered against it. 

 

 On June 20, 2014, the Chief Administrative Law Judge issued an Order to Show Cause in 

response to Clayton’s failure to answer the Secretary of Labor’s March 18, 2014 Petition for 

Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order 

on July 21, 2014, when it appeared that the operator had not filed an answer within 30 days. 

Carson Hill claims that it sent a timely answer to the Petition for Assessment of Civil 

Penalty to the Secretary’s Denver Regional Office. The Secretary confirms this but states that 

there is no indication that the operator copied the Chief Administrative Law Judge on the 

correspondence. Furthermore, it appears that the operator promptly sought reopening after 

receiving a delinquency notice dated June 8, 2015. The Secretary does not oppose the request to 

reopen. 

 

 The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 v. 

CARSON HILL ROCK PRODUCTS 

 

Docket No. WEST 2014-389 

A.C. No. 04-04792-335756 

38 FMSHRC Page 2543
In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

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

other reason justifying relief. 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal 

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

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

justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is 

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2544
Distribution: 

Nick McTague 

Mine Foreman 

Carson Hill Rock Products 

4795 Hwy 49 

Carson Hill, CA 95222 

 

Nick McTague 

Mine Foreman 

Carson Hill Rock Products 

P.O. Box 305 

Vallecito, CA 95251 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 2545

ADMINISTRATIVE LAW JUDGE DECISIONS
38 FMSHRC Page 2546
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, COLORADO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 6, 2016 

 

DECISION AND ORDER

Appearances: Margaret Temple and Suzanne Demitrio Campbell, U.S. Department of Labor, 

Office of the Solicitor, New York, New York, for Petitioner; 

 Kevin R. Keating, Oldcastle Law Group, Atlanta, Georgia, for Respondent. 

Before: Judge Miller 

 These cases are before me upon petitions for assessment of civil penalties filed by the 

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

1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve sixteen citations issued pursuant to 

Section 104(a) of the Act with originally proposed penalties totaling $3,758.00. Prior to hearing, 

the parties agreed to settle six of the citations from Docket No. YORK 2016-66 and one from 

Docket No. YORK 2016-72. The Secretary vacated a second citation from YORK 2016-72 just 

prior to hearing, and the parties settled a third citation from that docket during the hearing. The 

settlement is addressed below. The parties presented testimony and evidence regarding the 

remaining seven citations at a hearing held in Poughkeepsie, New York, on July 27, 2016. Based 

upon the parties’ stipulations, my review of the entire record, my observation of the demeanors 

of the witnesses, and consideration of the parties’ legal arguments, I make the following findings 

and order. 

The Haverstraw Quarry and Mill is a surface granite mine in Rockland County, New 

York, operated by Tilcon New York, Inc. The parties have stipulated that Tilcon is an “operator” 

as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the jurisdiction 

of the Commission. Ex. P-1. Tilcon New York operates four quarries as well as several other 

plants, and has approximately 275 to 300 employees. The Haverstraw Quarry is one of the 

company’s larger quarries. A history of assessed violations at the mine was admitted as Exhibit 

P-17. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

TILCON NEW YORK INC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 2016-66 

A.C. No. 30-00075-402400 

Docket No. YORK 2016-72-M 

A.C. No. 30-00075-404552 

Mine: Haverstraw Quarry & Mill 

38 FMSHRC Page 2547
On December 28, 2015, Inspector Brian Righi traveled to the Haverstraw Quarry to conduct 

a general inspection. Righi also returned to the mine the following day and on January 5 and 6. 

Righi has been a mine inspector for four years and estimated that he has conducted 141 

inspections. He has attended the required MSHA training. Prior to becoming an inspector, he 

worked 15 years in the mining industry, including work on crushers, conveyors, and various 

safety and health matters. 

I. APPLICABLE PRINCIPLES OF LAW 

The citations issued by Righi have been designated with various levels of negligence and 

several have been designated as significant and substantial violations. The Secretary has the 

burden of proof and the mine operator has the burden to prove any defenses it may raise, 

including the issue of fair notice. 

A. Establishing a Violation 

To prevail on a penalty petition, the Secretary bears the burden of proving an alleged 

violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). The Secretary may establish a violation by inference in certain situations, but 

only if the inference is “inherently reasonable” and there is “a rational connection between the 

evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152-53 (Nov. 1989). 

B. Significant and Substantial 

A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) 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 S&S “if based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation is S&S: 

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: (1) the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that 

the injury in question will be of a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

38 FMSHRC Page 2548
The second element of the Mathies test addresses the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC __, No. 

WEVA 2011-283, slip op. at 5 n.8 (Aug. 29, 2016). The Commission has explained that 

“hazard” refers to the prospective danger the cited safety standard is intended to prevent. Id. at 6. 

In Newtown, for instance, for a violation of a standard requiring that equipment be locked out 

and tagged out while electrical work is being performed, the Commission considered the hazard 

of a miner working on energized equipment. Id. The likelihood of the hazard occurring must be 

evaluated with respect to “the particular facts surrounding the violation.” Id.; see also McCoy 

Elkhorn Coal Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the 

third step, the judge must assess whether the hazard, if it occurred, would be reasonably likely to 

result in injury. Newtown, slip op. at 5. The existence of the hazard is assumed at this step. Id.; 

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the 

likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect 

to specific conditions in the mine. Newtown, slip op. at 7. Finally, the Commission has held that 

the S&S determination should be made assuming “continued normal mining operations.” 

McCoy, 36 FMSHRC at 1990-91.

C. Negligence 

The Secretary’s regulations categorize negligence into five categories, from “no 

negligence” to “reckless disregard.” 30 C.F.R. § 100.3, Table X. The Commission has 

emphasized, however, that these regulations apply to the Secretary’s proposal of penalties only, 

and are not binding on the Commission. Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 

2015). The Commission instead directs its judges to “evaluate negligence from the starting point 

of a traditional negligence analysis . . . . Under such an analysis, an operator is negligent if it fails 

to meet the requisite standard of care—a standard of care that is high under the Mine Act.” Id. at 

1702. In evaluating an operator’s negligence, the judge should consider “what actions would 

have been taken under the same circumstances by a reasonably prudent person familiar with the 

mining industry, the relevant facts, and the protective purpose of the regulation.” Jim Walter 

Res., 36 FMSHRC 1972, 1975 (Aug. 2014). 

While the Secretary’s regulations focus on the presence or absence of mitigating 

circumstances in determining the level of negligence, 30 C.F.R. § 100.3, the Commission has 

indicated that Commission judges are not limited to this analysis and “may find ‘high 

negligence’ in spite of mitigating circumstances or may find ‘moderate’ negligence without 

identifying mitigating circumstances.” Brody, 37 FMSHRC at 1702-03. High negligence is 

characterized by “an aggravated lack of care that is more than ordinary negligence.” Id. at 1703. 

 

D. Fair Notice 

Where the language of a regulatory provision is clear, the provision must be enforced as 

written unless the regulator clearly intended a different meaning, or unless interpreting the 

language as it is written would lead to absurd results. Dyer v. United States, 832 F.2d 1062, 1066 

(9th Cir. 1987); Island Creek Coal Co., 20 FMSHRC 14, 18 (Jan. 1998). If, however, the 

standard is “silent or ambiguous with respect to the specific point at issue,” the court must defer 

to the agency’s interpretation of its own regulation “as long as it is reasonable.” Small Mine 

38 FMSHRC Page 2549
Devel., 37 FMSHRC 1892, 1894 (Sept. 2015) (quoting Tenet HealthSystems Healthcorp. v. 

Thompson, 254 F.3d 238, 248 (D.C. Cir. 2001)); see also Auer v. Robins, 519 U.S. 452, 461 

(1997) (holding that an agency’s interpretation of its own regulation is “controlling unless 

plainly erroneous or inconsistent with the regulation”). 

When an agency’s interpretation is the basis for imposition of a civil penalty, “a separate 

inquiry may arise concerning whether the respondent has received ‘fair notice’ of the 

interpretation it was fined for violating. ‘[D]ue process ... prevents ... deference from validating 

the application of a regulation that fails to give fair warning of the conduct it prohibits or 

requires.’” Island Creek, 20 FMSRHC at 24 (quoting Gates & Fox Co. v. OSHRC, 790 F.2d 154, 

156 (D.C. Cir 1986)). In evaluating whether a standard provides fair notice to an operator, the 

Commission applies the “reasonably prudent person” test: application of a standard to a set of 

facts is consistent with fair notice if “a reasonably prudent person familiar with the mining 

industry and the protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 

1990). 

 

In applying the reasonably prudent person standard, the Commission has taken into 

account a wide variety of factors, including the text of the regulation, its placement in the overall 

regulatory scheme, explicit definitions in the regulations or the Act, the regulatory history, the 

consistency of the agency’s enforcement, and whether MSHA has published notices informing 

the regulated community of its interpretation. See Hecla Ltd., 30 FMSHRC __, No. WEST 2012-

760-M (Aug. 30, 2016); Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 2010); Island 

Creek, 20 FMSHRC at 24-25; Morton Int’l, Inc., 18 FMSHRC 533, 539 (Apr. 1996); Ideal 

Cement Co., 12 FMSHRC at 2416. Also relevant is the testimony of the inspector and the 

operator’s employees as to whether they believed the cited condition to be a violation. Island 

Creek, 20 FMSHRC at 24-25. Finally, the Commission has looked to evidence of accepted safety 

practices in the industry. See BHP Minerals Int’l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996); 

Ideal Cement, 12 FMSHRC at 2416.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

 The seven citations discussed below remain in dispute and I make the following findings 

with regard to each. 

A. Citation No. 8923674 

In the course of his inspection, Inspector Righi observed an elevated highwall roadway 

leading to an active drilling area. The roadway had a drop-off of approximately 50 feet. It was 

unbermed for about 200 feet on one side, but orange barrels had been placed at the entrance to 

the roadway. The barrels were labeled with a warning that the area was unbermed, but the 

warning was in relatively small type and could not be seen without getting close to the barrels. 

See Exs. R-H, P-2. Although Eric Kechejian, Tilcon’s safety director, stated that the barrel cones 

were heavy, it was possible to move them. Kechejian explained that the mine had been using the 

barrels in place of berms for many years and that past inspectors had approved. 

38 FMSHRC Page 2550
Righi testified that the roadway became an active drilling area farther down the road. The 

portion near the barrels was used by drilling, blasting, and maintenance vehicles, but was not 

heavily traveled. Righi understood that blasting and drilling at the mine were performed by a 

contractor and were done regularly but not every day. The mine’s plant manager, George 

Lindbloom, testified that the area was being actively mined at the time of the inspection and that 

berms had been removed where drilling and blasting were going to take place. Righi did not 

agree that the cited portion of the road was an active mining area. 

Righi was concerned that the barrel cones could be easily moved and did not effectively 

impede entry. He cited the mine for a violation of 30 C.F.R. § 56.9300(d). The Secretary requires 

that berms or guardrails be provided “on the banks of roadways where a drop-off exists of 

sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” 30 

C.F.R. § 56.9300(a). However, if the roadway is “infrequently traveled and used only by service 

or maintenance vehicles,” the mine may instead comply with the standard by providing all of the 

following alternative safety measures: 1) locked gates at the entrance points of the roadway; 2) 

signs warning that the roadway is unbermed; 3) delineators along the perimeter of the roadway to 

indicate the edges and attitude of the roadway; 4) a maximum speed limit posted on the roadway; 

5) road surface traction that is not impaired by weather conditions, or corrective measures to 

improve traction in the event of bad weather conditions. 30 C.F.R. § 56.9300(d). The inspector 

cited the mine under this alternative subsection. 

Tilcon disputes that the roadway was “infrequently travelled,” arguing that it was an 

active mining area. However, Tilcon acknowledges in its post-hearing brief that the area was a 

“roadway.” Resp. Br. at 8. It is clear from the testimony that the area had a drop-off of 50 feet. 

Thus, regardless of whether the exceptions in § 56.9300(d) were applicable, the area was subject 

to § 56.9300(a), the general provision requiring berms. Tilcon does not claim to have installed 

berms. Nor does it claim to have installed locked gates and delineators along the perimeter of the 

roadway to satisfy the exception in § 56.9300(d). Accordingly, I find that a violation occurred. 

Tilcon argues that it was not provided with fair notice of the inspector’s interpretation, 

but I reject this argument. I do not credit the safety director’s testimony that the exact 

configuration had been observed by other inspectors without a citation issued. While inspectors 

may have been in the area on previous inspections, there is no credible evidence to show that the 

exact conditions existed and were not cited. Additionally, a reasonable miner would recognize 

that the barrels that were in place would not keep a miner from driving along the cited area that 

was not bermed. 

The Secretary alleges that the violation was the result of low negligence, that it was 

unlikely to result in injury, that if injury did occur it would be fatal, and that the violation was 

not S&S. I agree that the negligence was low, since there was some genuine disagreement about 

the nature of the road. The testimony and the record support a finding that the violation was 

much more serious than the inspector indicated and should have been marked as significant and 

substantial. There is no question that persons travelled near the entrance to this road. They would 

not have been kept out or warned by the cones with the warning in small lettering. The drillers 

and blasters who used the area could easily over-travel on the road and drop down a 50-foot 

38 FMSHRC Page 2551
drop-off. For that reason, I find that injury was reasonably likely to occur and the gravity was 

greater than the citation indicates. I assess a penalty of $1,000.00. 

 

B. Citation No. 8923675

Righi observed loose material extending the length of the 140 bench highwall. There was 

loose gravel as well as a large boulder at one point on the wall. He did not observe falling 

material, but observed a residual pile along the base of the wall. Righi also testified that the 

mine’s blasting method involved drilling past what would become the next bench, and that the 

top edge of the wall was therefore likely fractured. He did not believe the mine had scaled 

recently, and a miner told him the company did not like to scale. 

Lindbloom testified that the material on the highwall was compacted rather than loose 

and unconsolidated. The highwall is inspected daily, and Lindbloom explained that the miners 

who work in the area are familiar with the geology, know how to identify unsafe conditions, and 

are empowered to address them. The wall was scaled to terminate the citation, and miners told 

Lindbloom they believed the wall was less safe after it was scaled because the rock had been 

loosened. Lindbloom stated that the boulder was a remnant of an earlier road, was set back about 

a foot, was angled away from the edge, and was not in danger of falling over the highwall. 

Righi observed three miners working in the area around the highwall, hauling material 

from a muck pile with a loader and haul trucks. The boulder was directly above them. Righi 

stated that loading out the muck pile involved driving along the base of the highwall. Lindbloom 

disagreed, saying that the loader operator would actually be at least 30 feet from the bottom of 

the highwall. He stated that the muck pile was at the base of the highwall and extended six to ten 

feet, and the loader operator would be loading out of the pile with the scoop end of the loader 

facing the wall. He stated that the muck pile is against the wall and is intended to keep miners 

from getting too close to the wall. However, Righi observed a tire track close to the wall. There 

were no warnings or barricades to keep workers from walking next to the face. 

Righi issued Citation No. 8923675 for a violation of 30 C.F.R. § 56.3200, which requires 

that “Ground conditions that create a hazard to persons shall be taken down or supported before 

other work or travel is permitted in the affected area.” The Commission has explained that the 

plain language of § 56.3200, when read in conjunction with §§ 56.3130 and 56.3131, requires 

operators to “maintain highwall stability and correct hazardous conditions before work or travel 

takes place.” Connolly-Pacific Co., 36 FMSHRC 1549, 1553 (June 2014). The preamble to § 

56.3200 states that it is a “performance-oriented” standard with “broad application” that applies 

“wherever such a hazard is present.” 51 Fed. Reg. 36,192 (Oct. 8, 1986). In applying broadly 

worded standards, the Commission uses the reasonably prudent person standard, asking “whether 

a reasonably prudent person would have ascertained the specific prohibition of the standard and 

concluded that a hazard existed.” U.S. Steel Mining Co., LLC, 27 FMSHRC 435, 439 (May 

2005). 

 

I credit the testimony and reasoning of Righi and find that the rocks and loose material at 

the top of the highwall presented a hazard to those working below. An experienced MSHA 

inspector’s opinion that a hazard exists is entitled to substantial weight. Buck Creek Coal Inc. v. 

MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Harland Cumberland Coal Co., 20 FMSHRC 1275, 

38 FMSHRC Page 2552
1278-79 (Dec. 1998). Tilcon offered little evidence of the general condition of the highwall and 

its methods for controlling it, and I find no reason to doubt the inspector’s descriptions. Righi 

explained that he observed loose material and both large and small rocks. Any freezing of the 

ground, blasting in the area, or removal of material could easily cause the rocks to fall. A 

reasonably prudent person would have understood that scaling and berms were necessary. I also 

credit the inspector’s finding that miners were working at the base of the highwall and were 

exposed to a fall hazard. Even a small rock falling from that height could crash through the 

windshield of a piece of equipment and injure a miner. 

I find further that the violation was significant and substantial. Applying the Mathies

criteria, there was a violation of a mandatory standard which created the hazard of rock and loose 

material falling from a height above and hitting someone working below. The hazard was likely 

to occur because the mine’s drilling methods had destabilized the highwall, making a fall likely, 

and three miners were working at the base. Falling rock or loose material that hit a truck or 

loader would be likely to crush the top or crash through the windshield, causing death or serious 

injury. In view of the evidence that the miners had not scaled recently or installed berms, I also 

accept the designation of moderate negligence. I assess a penalty of $807.00 as proposed. 

C. Citation No. 8923680 

Inspector Righi issued a number of guarding violations during the inspection. Citation 

No. 8923680 relates to an area guard for a large cone crusher. The guard is a fence and gate 

enclosing the crusher, and is intended to protect miners from contact with the V-belts and drive 

pulleys that operate the cone crusher. Additional guards for the belts and pulleys are not provided 

inside the fence, so a miner entering through the gate could come in contact with the moving 

parts. Righi observed that the gate was secured with a nut and bolt and labeled with a “Do Not 

Enter” sign. However, the nut and bolt were loose and came apart when he touched the gate. 

Righi believed that the nut and bolt did not adequately secure the area and that a padlock should 

have been used instead. He explained that the gate was easily defeated and someone could easily 

enter the area and access the moving parts. However, he did not believe that the condition was 

likely to cause injury due to the presence of the gate and the “Do Not Enter” sign. 

Lindbloom testified that the mine has a policy prohibiting miners from entering areas to 

work on moving components unless they have been locked out and tagged out. He stated that 

miners would not enter the area to inspect it, because they conduct inspections from outside the 

fenced area. He also stated that the mine had been using the guard in this form for 11 or 12 years. 

Kechejian said that the mine has not been cited for using the nut and bolt in the past. 

Righi cited the mine for a violation of § 56.14112(b), which provides that “Guards shall 

be securely in place while machinery is being operated, except when testing or making 

adjustments which cannot be performed without removal of the guard.” 30 C.F.R. § 56.14112(b). 

He designated the citation as resulting from low negligence and being unlikely to cause injury, 

noting that the mine had made attempts to secure the area and that miners were unlikely to enter 

it. 

38 FMSHRC Page 2553
Tilcon argues that the guarding standards are intended to address inadvertent contact with 

machine parts, but that in this case, a miner would only contact the parts if he intentionally 

entered the gated area. However, Righi testified that when he touched the gate, the nut and bolt 

came apart. The photographs also show that the gate was located at the bottom of a short 

stairway, so someone could fall into the gate. See Exs. P-5, R-B. Righi stated that the moving 

machine parts were right inside the gate, where someone could contact them. 

I find that the gate as observed by Righi was not secure, and therefore a violation has 

been shown. Tilcon argues that it did not have fair notice of the requirement because past 

inspectors had permitted the gate in this condition. However, I find that the Secretary’s 

interpretation of the regulation was clear in this instance. A gate that opens when touched is 

clearly not “securely in place” as required by the plain language of the standard. “[W]hen the 

meaning of a standard is clear based on its plain language, it follows that the standard provided 

the operator with adequate notice of its requirements.” Austin Powder Co., 29 FMSHRC 909, 

919 (Nov. 2007) (internal quotations omitted) (quoting LaFarge Constr. Materials, 20 FMSHRC 

1140, 1144 (Oct. 1998)). An inconsistent enforcement pattern by the Secretary does not change 

that result. Id. at 920. 

While I believe this violation was more serious than the inspector indicated, I defer to his 

assessment that the violation was unlikely to cause injury and was the result of low negligence. 

Therefore, I assess a $100.00 penalty as proposed by the Secretary. 

D. Citation No. 8923683

Citation No. 8923683 also alleges a violation of § 56.14112(b). A guard was provided 

around the drive pulley for the motor on the Diester scalping screen, which is used to size and 

sort rock. Righi observed that the guard, a piece of expanded metal, had been pushed up in one 

location, exposing the belt and pulley. Photographs introduced by the Secretary show the small 

gap in the guard. Ex. P-6. The exposed area was small, but large enough for someone to fit a 

hand through. It was located on the top and side of the motor and so not easily accessible. The 

area would be accessed via a metal walkway to the side of the motor. While Lindbloom pointed 

out that the general area was roped off with a sign saying “Danger Falling Rocks,” the area could 

be accessed for clean-up, maintenance, or to inspect nearby fire extinguishers. 

The witnesses differed on the potential for a person to contact the moving parts. 

Lindbloom stated that it would be impossible for someone to contact the pulley because the gap 

in the guard was narrow, it was four to five feet off the ground, and the walkway was two to 

three feet away from the machine. Righi agreed that he came within two feet of the spot. But he 

believed it would be possible for someone to trip on a stone on the walkway and put his hand 

into the gap to catch himself. I credit the testimony of the inspector on this point. The mine also 

argues that its lock-out/tag-out policy would prevent any person from contacting moving 

machine parts. Resp. Br. at 5. However, the purpose of guarding standards is to prevent 

inadvertent contact. Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Such 

contact is not fully addressed by a lock-out/tag-out policy. 

 

 The photographs show a small unguarded area on the scalping screen. While the spot is 

not easily accessed, it can be done. Given the falling material around the screen and the need to 

38 FMSHRC Page 2554
access the equipment periodically, the unguarded area presented a hazard. Lindbloom and 

Kechejian stated that the guard had been in the position observed by Righi for seven or eight 

years and had never been cited. However, the inspector’s photographs show that the guard was at 

an angle and appears to be out of place. I find therefore that the guard was not “securely in 

place,” and that a violation existed. I reject the fair notice defense raised by the mine based on 

past inspections that were not substantiated. Since the gap was on top of the motor where it was 

unlikely to be reached, I agree with the inspector that the violation was unlikely to cause injury. 

The inspector designated the citation as resulting from moderate negligence because it was open 

and obvious, and I agree. I assess a $100.00 penalty as proposed by the Secretary. 

E. Citation No. 8923686 

Citation No. 8923686 involves a head pulley guard on a V-belt, a conveyor used to move 

stone. Righi observed that a section was missing on the lower part of guard, and no guard was 

provided on the back side of the pulley drive. Exhibit P-9 includes photographs showing the gaps 

where there are missing guards. Righi believed that the guards were not adequate to protect 

miners from coming into contact with moving parts. He believed miners would be in the area to 

grease and maintain the equipment. 

Tilcon’s witnesses showed that the pulley was difficult to access: a miner would have to 

walk across 500 feet of catwalk, pass through a chain, go down a ladder and up another ladder, 

and go through a waist-high gate secured with a nut and bolt. Lindbloom and Kechejian testified 

that greasing on the machinery was done remotely and inspections were done from below, so the 

only reason a miner would be in the area would be for maintenance on the belt, in which case the 

equipment would be locked out. Righi argued that miners would also need to enter the area for 

monthly fire extinguisher checks and periodic housekeeping. 

Righi cited the mine for a violation of 30 C.F.R. § 56.14107(a), which requires that 

“Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar 

moving parts that can cause injury.” Because only a small portion of the pulley was not guarded, 

Righi determined that the violation was not S&S. 

The inspector’s testimony and photos indicate that there were moving machine parts that 

were not completely guarded. However, the Commission has held that for a guarding standard to 

be applicable there must be a “reasonable possibility of contact and injury.” Thompson Bros., 6 

FMSHRC at 2097. In assessing whether there is a reasonable possibility of contact, judges are 

instructed to consider “all relevant exposure and injury variables, e.g., accessibility of the 

machine parts, work areas, ingress and egress, work duties, and ... the vagaries of human 

conduct.” Id. Here, I credit the statements of Tilcon’s witnesses that most maintenance of the belt 

was done remotely and that it was extremely difficult to access the area. Anyone going into that 

remote area would de-energize the equipment prior to moving near the small unguarded spot. 

Accordingly, I find there was no reasonable possibility of a person contacting moving machine 

parts, and additional guarding was not required. Therefore, this citation is vacated. 

38 FMSHRC Page 2555
F. Citation No. 8923690

Citation No. 8923690 alleges another violation of § 56.14107(a) for inadequate guarding. 

Righi observed that a section next to the electrical motor on the no.6 crusher was not guarded, 

exposing the V-belts and pulley. The unguarded section was approximately 2.5 by 12 inches. 

The area was about four or five feet above the walking area, leading the inspector to believe that 

someone could slip and fall and contact the moving parts. Lindbloom stated that a second angled 

guard by the motor would prevent anyone from touching the unguarded spot, and that a person 

could not contact the motor without intentionally reaching through the guard. The mine produced 

photographs showing the second angled guard. Ex. R-G. However, Righi stated that the second 

guard did not prevent him from walking right up to the problem area, and that the photograph 

was misleading. Lindbloom stated that the crusher stands alone and can only be accessed via a 

separated platform. He stated that the only time a miner would be in the area while the machine 

was running would be to view the moving parts or to hose off the platform. For other 

maintenance, the machine would be locked out. 

I credit the inspector’s observation and findings and find that there is a violation. Because 

the unguarded area was small, it may have escaped miners’ attention. I therefore find that 

negligence was low. The violation was unlikely to cause injury due to the size and location of the 

gap. I assess a $100.00 penalty as proposed by the Secretary. 

G. Citation No. 8923694 

Citation No. 8923694 concerns a bent step near the left rear engine compartment of a 

loader. The parties agree that the machine operator had other means of accessing the cab, and the 

step was not intended for that use. However, Righi believed that a fueler and oiler would use the 

step daily when servicing the machine. A person using the step could slip and fall since it was 

not a flat surface. Lindbloom testified that the maintenance crew typically does not use the step 

anyway because it is too high. Instead, they back the fuel truck directly up to the machine or use 

a ladder they carry with them. The condition had been reported in a pre-shift examination several 

months earlier, but the maintenance department determined that the step was safe and did not 

repair it. 

Righi issued Citation No. 8923694 for a violation of 30 C.F.R. § 56.11001, which 

requires that “Safe means of access shall be provided and maintained to all working places.” He 

designated the citation as S&S and resulting from high negligence. 

I find that the engine of the loader was a “working place,” for purposes of fueling, oiling, 

and general maintenance. The step was a means of accessing the engine, and the standard thus 

required that it be maintained in a safe condition. Exhibit P-14 clearly shows that the step is bent. 

I agree with Righi that this created a hazard. In the event that a miner was not looking and 

stepped up onto the slanted step, he would be likely to fall backwards and be injured. I therefore 

find that a violation has been shown. I find that a reasonable person familiar with the mining 

industry would have understood that the bent step was not properly “maintained” as required by 

the standard, and so reject Tilcon’s fair notice argument. Resp. Br. at 10-11; see Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (November 1990). 

38 FMSHRC Page 2556
Applying the Mathies S&S criteria to this citation, I find that the Secretary has proven a 

violation of a mandatory standard. The hazard created by the violation is that someone using the 

step could fall backward onto the ground. I find that this hazard was likely to occur. While 

Tilcon claims that the maintenance crew used a ladder rather than the step, someone could easily 

forget and use the step. It had not been removed or flagged in any way. Such a person could 

easily fall when they stepped on the slanted surface, expecting a flat one. If the hazard occurred, 

a person falling backward onto the ground from a height of three feet would likely be injured. An 

injury of broken bones or back or neck injury would be likely, which are reasonably serious in 

nature. Therefore, I find the violation is S&S. 

Given that the condition had been reported to the mine operator but it chose not to repair 

the step, the negligence is high. I assess the penalty of $1,203.00 as proposed by the Secretary. 

III.PENALTIES 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must 

consider six statutory penalty criteria: the operator’s history of violations, its size, whether the 

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

the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping 

with this statutory requirement, the Commission has held that judges must make findings of fact 

on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion “bounded by proper 

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty 

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

The history of assessed violations has been admitted into evidence and shows nothing 

unusual in the history, particularly as it relates to the guards.1 It shows eight violations in the 15-

month period prior to the inspection, including one guarding violation and several equipment 

violations. The parties agree that the citations were abated in good faith and the mine has raised 

no defense of ability to pay. The negligence and the gravity have been discussed above with 

respect to each citation. 

IV.PARTIAL SETTLEMENT 

The Secretary has filed several motions to approve partial settlement, in which he 

represents that the parties have agreed to settle nine of the sixteen citations in these dockets. The 

 1

 The history of violations submitted by the parties omitted a portion of the fifteen month 

period. Ex. P-17. The court takes judicial notice of the mine’s history of violations as indicated 

on the MSHA website. 

38 FMSHRC Page 2557
Secretary has set forth the factual basis for the proposed modifications. The Respondent has 

agreed to the proposed changes. The originally assessed amount for the eight settled citations 

was $1,248.00 and the proposed settlement amount is $1,148.00. The proposed settlement 

includes: 

Citation No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

Docket No. YORK 2016-66 

8923678 $100.00 $100.00 None. 

8923681 $243.00 $243.00 Remove S&S designation. 

8923684 $100.00 $100.00 Modify negligence from moderate to low.

8923685 $100.00 $100.00 Modify negligence from moderate to low.

8923688 $100.00 $100.00 None. 

8923689 $243.00 $243.00 None. 

TOTAL $886.00 $886.00 

Docket No. YORK 2016-72-M 

8923691 $162.00 $162.00 None. 

8923692 $100.00 $100.00 Modify negligence from high to low. 

8923693 $100.00 --- Vacate. 

TOTAL $362.00 $262.00 

 

I accept the representations and modifications of the Secretary as set forth in the motions 

to approve settlement. I have considered the representations and documentation submitted, find 

that the modifications are reasonable, and conclude that the proposed settlement is appropriate 

under the criteria set forth in Section 110(i) of the Act. The citations listed above as settled are 

approved. The following chart sets forth the penalty amounts for each of the seven citations that 

are subject to this decision. 

Citation No. 

Originally 

Proposed 

Assessment 

Decision 

Amount Modification 

Docket No. YORK 2016-66 

8923674 $100.00 $1,000.00 Modify likelihood of injury from unlikely to 

reasonably likely. 

8923675 $807.00 $807.00 None 

8923680 $100.00 $100.00 None. 

8923683 $100.00 $100.00 None. 

8923686 $100.00 --- Vacate. 

TOTAL $1,207.00 $2,007.00 

38 FMSHRC Page 2558
Docket No. YORK 2016-72-M 

8923690 $100.00 $100.00 Modify negligence from moderate to low.

8923694 $1,203.00 $1,203.00 

TOTAL $1,303.00 $1,303.00 

GRAND 

TOTAL $3,758.00 $4,458.00 

V. ORDER 

The Secretary’s motions to approve partial settlement are GRANTED. The Respondent 

is ordered to pay an additional $3,310.00 total penalty as detailed in the findings above for the 

seven contested citations. Respondent is hereby ORDERED to pay the Secretary of Labor the 

sum of $4,458.00 within 30 days of the date of this decision. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Terrence Duncan, Margaret Temple, Suzanne Campbell, U.S. Department of Labor, Office of the 

Solicitor, 201 Varick Street, Room 983, New York, NY 10014 

Kevin R. Keating, Oldcastle Law Group, 900 Ashwood Parkway, Suite 600, Atlanta, GA 30338 

38 FMSHRC Page 2559
THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004 

October 7, 2016 

DECISION 

Appearances: Daniel McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, Colorado, for Petitioner; 

 Kevin Keating, Oldcastle Law Group, Atlanta, Georgia, for Respondent. 

Before: Judge Bulluck 

 These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration 

(“MSHA”) against APAC-Kansas, Incorporated, (“APAC”), pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). The Secretary seeks a 

total penalty of $9,666.00 for 32 alleged violations of his mandatory safety standards.1 

 A hearing was held in Liberty, Missouri. The following issues are before me: (1) whether 

APAC violated the cited standards; (2) whether the violations were significant and substantial, 

where alleged; (3) whether the violations were attributable to the level of negligence alleged; and 

(4) the appropriate penalty. The parties’ Post-hearing Briefs are of record. 

 1

 The parties reached a settlement on 27 of the 32 contested citations/orders. The total 

civil penalty proposed for the remaining four citations and order adjudicated in this proceeding is 

$3,070.00. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 

v. 

APAC-KANSAS, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2015-1-M 

AC No. 14-01578-361486 

Docket No. CENT 2015-157-M 

AC No. 14-01578-369439 

Docket No. CENT 2015-220-M 

AC No. 14-01578-371826 

Mine: Bonner Springs Quarry 

38 FMSHRC Page 2560
For the reasons set forth below, I AFFIRM four citations and one order, as issued, and 

assess penalties against Respondent. 

I. FACTUAL BACKGROUND 

APAC owns and operates the Bonner Springs quarry, a surface limestone mine in 

Wyandotte County, Kansas. The mine is staffed by approximately nine miners, working one shift 

per day. Tr. 190, 219. Bryan Lane, operations manager, and Keith Stoker, plant superintendent, 

were working at the mine during the 2014 inspection at issue. Tr. 162, 197. 

APAC’s mining process involves drilling and blasting its limestone highwall to form 

benches. Tr. 28-29. Crushed limestone accumulated at the base of the 42-foot highwall is 

removed and stockpiled by a front-end loader, then loaded onto haul trucks to be processed into 

saleable product. Tr. 27-30, 46-47. Between the mine floor and the top of the highwall, a safety 

or catch bench, approximately 21 feet above ground, prevents material in the upper highwall 

from falling onto the work area at the toe. Tr. 29-30. 

 On July 21, 2014, local media reported that an accident had occurred on an APAC mine 

site. Tr. 162. APAC investigated, and concluded that the accident had actually occurred on an 

adjacent property outside its control. Tr. 162. APAC management then called MSHA’s Topeka 

field office to explain the inaccurate media report. Tr. 163. Later that night, MSHA supervisory 

Inspector Sidney Garay called APAC’s division president, David Guillaume, to inquire about the 

incident. Tr. 163. 

 The following day, MSHA inspectors Garay, Christopher Ewing, and Dustin Crelly 

began an E01 regular inspection of the Bonner Springs mine that lasted for several weeks, and 

resulted in numerous citations.2

 Tr. 24-25, 98, 164. Among other violations, Garay cited APAC 

for failing to maintain two areas of the highwall (Exs. P-2, P-3); failing to guard moving parts on 

mobile equipment (Ex. P-5); failing to provide site-specific hazard training (Ex. P-4); and failing 

to conduct adequate workplace examinations (Ex. P-6). 

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Citation No. 8760649 

Inspector Garay issued 104(a) Citation No. 8760649 on July 22, 2014, alleging a 

“significant and substantial” violation of section 56.3131 that was “reasonably likely” to result in 

 2

 APAC characterizes the inspection as retaliatory and a clear abuse of discretion. Tr. 

164, 201; Resp’t Br. at 2-3, 14. Even if the inaccurate media report sparked the inspection, no 

citations were issued related to the incident, and there is no record evidence, whatsoever, 

supporting this contention. 

38 FMSHRC Page 2561
an injury that could reasonably be expected to be “fatal,” and was caused by APAC’s “moderate” 

negligence.3 The “Condition or Practice” is described as follows: 

Operator failed to maintain loose and unconsolidated material on the working face 

located in the pit at the Argentine ledge high wall. Several rocks measuring 

approximately 8 inches to 24 inches in diameter, which are located approximately 

42 feet from the ground level. The operator of the 992G CO#950 is working in the 

area on a regular basis. This condition exposes miners to a catastrophic collapse 

of the high wall, exposing miners to a fall of materials, blunt force, and fatal 

injuries hazard. 

Ex. P-2. The citation was terminated on August 5 after APAC installed a berm at the toe of the 

highwall approximately 20 to 25 feet from the working face. 

1. Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary 

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone 

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989)). 

The Secretary contends that APAC’s miners were working directly under loose, 

unconsolidated material, and that the operator employed no safety measures between the bench 

and the pit floor where they were working. Sec’y Br. at 6-8. APAC argues that the highwall was 

not in danger of a catastrophic collapse, and that the front-end loader operator was at least 50 feet 

away from the highwall - - a distance beyond which a falling rock would have traveled. Resp’t 

Br. at 17-19. 

Supervisory Inspector Sidney Garay came to MSHA in 2002, having worked in the 

mining industry for 21 years, with experience in evaluating highwall safety in a surface mine, 

and familiarity with MSHA training requirements. Tr. 17-20. He testified that section 56.3131 

requires the operator to maintain loose and unconsolidated material in the working face of the 

highwall, between the bench and the floor, by scaling loose rock, or installing a berm at the mine 

floor to prevent access to the area where rock may fall. Tr. 57-59. He stated that the highwall 

displayed significant cracking, that a horseshoe-shaped feature in the bench evidenced a previous 

rock fall above the work area, that loose material that could fall at any time was located above 

and below the bench, that 8- to 24-inch diameter loose and unconsolidated material had 

accumulated on the bench, and that one section of the bench above the work area had been 

 3

 30 C.F.R. § 56.3131 provides that “[i]n places where persons work or travel in 

performing their assigned tasks, loose or unconsolidated material shall be sloped to the angle of 

repose or stripped back for at least 10 feet from the top of the pit or quarry wall. Other conditions 

at or near the perimeter of the pit or quarry wall which create a fall-of-material hazard to persons 

shall be corrected.” 

38 FMSHRC Page 2562
blasted away. Tr. 32, 46, 57, 64, 66-67, 138-39; Ex. P-2 at 8, 10-11. He testified that no safety 

features protecting miners from a fall-of-material hazard were employed between the bench and 

the pit floor. Tr. 43; Ex. P-2 at 7. Garay also stated that while driving toward the highwall, he 

observed a front-end loader operating perpendicular and parallel to the highwall from an 

estimated distance of 12 to 24 feet, loading stone from the muck pile onto haul trucks. Tr. 25, 32-

33, 142-45; Ex. P-2 at 8. He opined that the front-end loader operator was exposed to a fall-ofmaterial hazard and potentially fatal injuries because the cab of the loader offered little 

protection from falling rocks, which generally fall in masses, and that the muck pile, itself, could 

not constitute a berm. Tr. 65-66, 147; Ex. P-2 at 7. 

 

Plant supervisor Keith Stoker had 29 years of mining experience, and had been working 

at APAC for four years. Tr. 197-98. Testifying for APAC, he stated that he accompanied Garay 

and Ewing into the pit, and that the geology of the highwall is loose and unconsolidated, leading 

to “pieces and parts” that “move and shift,” but that a catastrophic collapse of the entire highwall 

is highly unlikely. Tr. 203-04, 215. Stoker identified a photograph as depicting a muck pile at the 

foot of the highwall comprised of shot material, and he marked the exhibit to indicate the fall 

pattern of the rock that Ewing had identified to him as loose and unconsolidated during the 

inspection. Ex. R-12; Tr. 203-04, 223. Stoker also stated that a front-end loader working the 

muck pile would leave tracks in the direction in which it is traveling, and that it operates 

perpendicular to the highwall. Tr. 224. According to Stoker, when the front-end loader’s bucket 

is touching the highwall, the operator’s seat is elevated 13.5 feet above ground and its centerline 

is exactly 28 feet from the highwall. Tr. 207. In his opinion, therefore, the front-end loader 

operator was not exposed to any fall-of-material hazard because of the “size of the machine, the 

height of the bench, and loading techniques being perpendicular.” Tr. 206. 

It is uncontested that the highwall was comprised of loose and unconsolidated material 8 

to 24 inches in diameter, above, below, and accumulated on the bench, that one section of the 

bench above the work area had been blasted away, and that a front-end loader was loading haul 

trucks with material from the muck pile at its toe when the inspection team arrived at the site. 

Since a portion of the bench had been blasted away, it no longer provided a layer of protection 

for the front-end loader operator. Based on the photograph showing tracks both perpendicular 

and parallel to the working face (Ex. P-2 at 8), corroborating Garay’s observation, I find that the 

front-end loader was operating in both directions, and because APAC failed to challenge Garay’s 

estimation, 12 to 24 feet from the highwall. Furthermore, APAC’s reliance on Lakeview Rock 

Products, Inc., 32 FMSHRC 305 (Mar. 2010) (ALJ), is misplaced. In that case, there was 

insufficient evidence that rocks in the highwall were loose and, even if they were, it was highly 

unlikely that they would have traveled 80 feet to where the front-end loader was operating. Id. at 

308-09. Here, the loader was operating significantly closer to the unscaled highwall than in the 

circumstances under which Lakeview was decided. As a result, I find that the front-end loader 

operator was exposed to a fall-of-material hazard, especially because the bench above the 

working face had been compromised, no berm had been constructed, and the front-end loader’s 

cab only provided limited protection. Accordingly, the Secretary has established a violation of 

section 56.3131. 

 

38 FMSHRC Page 2563
2. Significant and Substantial 

In Mathies Coal Company, the Commission set forth four criteria that the Secretary must 

establish in order to prove that a violation is “significant and substantial” (“S&S”) under Nat’l 

Gypsum, 3 FMSHRC 822 (Apr. 1981): 1) the underlying violation of a mandatory safety 

standard; 2) a discrete safety hazard - - that is, a measure of danger to safety - - contributed to by 

the violation; 3) a reasonable likelihood that the hazard contributed to will result in an injury; and 

4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 

(7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d

9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). 

The Commission has recently explained that the second Mathies criterion requires the 

judge to determine “whether, based upon the particular facts surrounding the violation, there 

exists a reasonable likelihood of the occurrence of the hazard against which the mandatory safety 

standard is directed.” Newtown Energy, Inc., 38 FMSHRC ___, slip op. at 6, No. WEVA 2011-

283 (Aug. 29, 2016). When evaluating the third Mathies criterion, the judge is to assume that the 

hazard identified in step two has been realized, and then consider whether the hazard would be 

reasonably likely to result in injury in the context of “continued normal mining operations.” Id. 

at 13 (citing Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016); 

Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal, 52 F.3d 

133 at 135; U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Resolution of whether a 

violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, 

Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 

2011-12 (Dec. 1987). The Secretary need not prove a reasonable likelihood that the violation, 

itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). 

 The fact of violation has been established and, respecting the second Mathies criterion, 

the hazard against which section 56.3131 is directed is a fall-of-material. A rock fall was 

reasonably likely given the unconsolidated composition of the highwall, evidence of a previous 

rock fall, loose 8- to 24-inch diameter material above, below, and accumulated on the bench, the 

compromised section of the bench above the work area, and the operation of the loader as close 

as 12 to 24 feet from the highwall. The third Mathies criterion has been met, in that falling rock 

striking the loader’s cab with only limited protection to the operator, was reasonably likely to 

result in an injury; and there is a reasonable likelihood that the operator would suffer serious 

musculoskeletal to fatal injuries, satisfying the fourth Mathies criterion. Therefore, I find that the 

violation was S&S. 

3. Negligence 

The Secretary argues that APAC’s negligence was moderate, and that the conditions were 

obvious and subject to regular workplace examinations. Sec’y Br. at 13. In consideration of the 

obviousness and extensiveness of this violation, and APAC’s failure to remediate its removal of 

the bench above the work area by employing safety measures such as scaling loose material or 

38 FMSHRC Page 2564
sloping the highwall to the angle of repose, I find that APAC was moderately negligent in 

violating section 56.3131. 

B. Citation No. 8760656

 Inspector Garay issued 104(a) Citation No. 8760656 on July 22, 2014, alleging a 

“significant and substantial” violation of section 56.3130 that was “reasonably likely” to result in 

an injury that could reasonably be expected to be “fatal,” and was caused by APAC’s “moderate” 

negligence.4

 The “Condition or Practice” is described as follows: 

Mining methods were not being used to maintain the wall, bank, and slope 

stability above the Argentine mine area. The north side high wall, at the 2nd 

bench area, has loose and unconsolidated material that is not sloped to angle of 

repose or stripped back for at least 10-feet. The exposed area is approximately 40 

to 60 feet in length and approximately 15 to 20 feet high from the Argentine 

bench level. Miners were working below the high wall exposing them to a 

catastrophic failure, collapse of the high wall, engulfment, blunt force, fatal injury 

hazard. 

Ex. P-3. The citation was terminated on July 23 when the highwall above the bench was scaled. 

1. Fact of Violation 

The Secretary contends that APAC did not employ any mining methods to maintain the 

wall, bank, and slope stability of the highwall above the bench where it had been mining. Sec’y 

Br. at 8-9. On the other hand, APAC argues that the highwall was not in danger of a catastrophic 

collapse, that no miner was working on the bench level and, again, relying upon Lakeview, 32 

FMSHRC at 305, that its front-end loader operator was too far from the highwall to be exposed 

to any fall-of-material hazard. Resp’t Br. at 18-20. 

Inspector Christopher Ewing joined MSHA in February of 2013 with 18 years of mining 

experience, and he was a trainee under Garay’s supervision at the time of the inspection. Tr. 24, 

225-28. Ewing was shown a photograph which he described as depicting the working area on the 

bench as it existed on the day of the inspection. Ex. P-3 at 4; Tr. 232. He testified that under 

loose, unconsolidated rock on the highwall edge, he observed tire tracks and windrows on the 

bench which, he concluded, were caused by a small front-end loader sweeping the bench in 

preparation for a round of drilling and blasting.5

 Tr. 229, 232-35; Ex. P-2 at 4. Ewing stated that 

 4

 30 C.F.R. § 56.3130 provides that “[m]ining methods shall be used that maintain wall, 

bank, and slope stability in places where persons work or travel in performing their assigned 

tasks. When benching is necessary, the width and height shall be based on the type of equipment 

used for cleaning of benches or for scaling of walls, banks, and slopes.” 

5

 A windrow is “[a] ridge of soil pushed up by a grader or bulldozer.” Am. Geological 

Institute, Dictionary of Mining, Mineral, and Related Terms 628 (2d ed. 1997) (“DMMRT”). 

38 FMSHRC Page 2565
the bench had not been barricaded to prevent access, that he saw a drill on the bench that was 

poised to drill the shot “as soon as they got somebody to it,” that he did not see a front-end 

loader or miner on the bench, and that he took a photograph of the drill (not in evidence). Tr. 

229-31, 242-43; Ex. R-14. Inspector Garay testified similarly, that there was a drill on the bench, 

but he believed that a miner was there also, although he testified that he did not take a 

photograph or make note of either. Tr. 154, 157; Ex. P-3 at 3. Garay and Ewing both testified 

that loose and unconsolidated material was at risk of falling onto the bench. Tr. 64, 154-56, 233; 

Ex. P-3 at 4. 

Stoker testified that the front-end-loader operator was the only miner in the pit at the time 

of the inspection, that no one was working on the bench, and that no one was exposed to any fallof-material hazard. Tr. 210, 212-13. As has already been noted, Stoker opined that a catastrophic 

collapse of the highwall is highly unlikely, although some rock fragments might shift. Tr. 215. 

It is uncontested that the bench had not been barricaded against entry, that a drill was 

positioned on it, that there was no front-end loader on it at the time of the inspection, and that 

loose, unconsolidated material was at risk of falling onto it. The credible evidence also 

establishes that no miner was on the bench at the time of the inspection. Nevertheless, I find that 

the bench was a work area based on the uncontroverted evidence of track marks and windrows 

indicating that a front-end loader had been operating there and that, based on the presence of the 

drill and APAC’s mining methods, drilling and blasting were soon to follow. Again, Lakeview is 

not persuasive because, in this case, the bench work area was directly under loose, 

unconsolidated rock. Therefore, I find that APAC failed to maintain the stability of the highwall 

above the working area on the bench by scaling the unconsolidated material, and that the 

Secretary has established a violation of section 56.3130. 

2. Significant and Substantial

Relying on Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986) (determining that the focus of the

S&S reasonable likelihood of injury criterion is the “pendency of the violative condition prior to 

the citation” and “continued normal mining operations”), the Secretary contends that it is 

immaterial to the S&S analysis whether a miner was, in fact, present on the bench at the time of 

the inspection. Sec’y Br. at 12. APAC argues, on the contrary, that since no miners were working 

on the bench, the violation posed no hazard. Resp’t Br. at 19-20. 

The fact of violation has been established and, having found that no miner was on the 

bench, the focus is on the mining activities that preceded and were to follow on the heels of the 

inspection. Respecting the second Mathies criterion, the hazard against which section 56.3130 is 

directed is a fall-of-material. A rock fall from above the bench was reasonably likely to occur 

because the upper highwall above the working face had not been scaled of loose, unconsolidated 

material, and the area had been prepared for impending drilling and blasting. The third Mathies 

criterion has been met, in that falling rock striking an unprotected miner was reasonably likely to 

result in an injury; and there is a reasonable likelihood that the miner would suffer serious 

musculoskeletal to fatal injuries, satisfying the fourth Mathies criterion. Therefore, I find that the 

violation was S&S. 

38 FMSHRC Page 2566
 3. Negligence 

Garay opined that APAC’s negligence was moderate because although the unstable 

highwall was obvious, he found no indication that APAC willfully exposed miners to the hazard. 

Tr. 60, 67. I find that APAC should have barricaded the affected bench area against entry or 

scaled down the loose, unconsolidated rock. Accordingly, I conclude that APAC was moderately 

negligence in violating the standard. 

C. Citation No. 8760651

Inspector Garay issued 104(a) Citation No. 8760651 on July 22, 2014, alleging a 

“significant and substantial” violation of section 56.14107(a) that was “reasonably likely” to 

result in an injury that could reasonably be expected to be “permanently disabling,” and was 

caused by APAC’s “moderate” negligence.6

 The “Condition or Practice” is described as follows: 

The Caterpillar Haul Truck, Model 777, CO#26.660090, the fan belt and pulley 

assemblies in the engine compartment directly below the operator cab were not 

guarded to protect persons from contacting fan blades and pulley assemblies and 

similar moving parts. This condition exposes persons to permanently disabling, 

entanglement, crushing injury hazards, in that the equipment operators access the 

area to perform regular maintenance. The exposed area is approximately 10 

inches to 20 inches wide and approximately 4 feet from the ground level. 

Ex. P-5. The citation was terminated on July 23 when APAC installed a guard. 

1. Fact of Violation

The Secretary argues that a haul truck did not have any guard installed in the engine 

compartment that would protect miners from inadvertently contacting the fan belt and pulleys 

located in a 30-inch wide work space that was regularly accessed in order to perform 

maintenance, examinations, and troubleshooting, that the engine is running while the mechanic is 

troubleshooting, and that a miner could slip, trip, or fall into the unguarded area. Sec’y Br. at 18-

20. APAC argues that the engine compartment was equipped with a factory-installed guard that 

was in place at the time of the inspection, that the fan belt and pulley assemblies could not be 

inadvertently contacted, and that the moving parts were too far away from any working miner to 

pose a hazard. Resp’t Br. at 9-11. 

Both parties cite Thompson Bros. Coal Co., Inc., 6 FMSHRC 2094 (Sept. 1984), for the 

test set forth by the Commission in analyzing whether moving parts require guarding. Sec’y Br. 

at 19; Resp’t Br. at 9. In Thompson, the Commission recognized that the guarding standard 

 6

 30 C.F.R. § 56.14107(a) provides that “[m]oving machine parts shall be guarded to 

protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, 

flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” 

38 FMSHRC Page 2567
“imports the concepts of reasonable possibility of contact and injury, including contact stemming 

from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.” 

6 FMSHRC at 2097. Therefore, all relevant exposure and injury variables must be considered, 

including “accessibility of the machine parts, work areas, ingress and egress, work duties, and . 

. . the vagaries of human conduct.” Id. 

Garay testified that the fan belt and pulley assemblies, recessed an estimated 10 to 20 

inches inside the haul truck’s engine compartment, elevated four feet off the ground, and 

accessible to miners through a 30-inch gap between the front tire and the truck’s body, were not 

guarded to protect miners against inadvertent contact. Tr. 81-82, 84, 137; Ex. P-5 at 5-7. 

Referring to his field notes, he stated that while the truck is positioned on uneven ground, miners 

access the work space daily to lubricate grease points or “Zerks,” that mechanics access it to 

perform visual examinations with the engine running to troubleshoot the fan belt and pulleys, 

and that the exposed parts move when the engine is running, creating an entanglement hazard. 

Tr. 86-87, 97, 130, 136; Ex. P-5 at 4-8. He opined that miners could slip, trip, and fall into the 

unguarded area and that, instinctively, they put their hands out to brace their fall, risking 

inadvertent contact and entanglement that could result in loss of a limb. Tr. 96, 134, 137. He 

testified that Caterpillar manufactures a factory-installed guard for the fan belt and pulleys, and 

that similar haul trucks at the mine were equipped with factory-installed guards. Tr. 90-92. On 

cross-examination, he was unable to identify whether a photograph of the cited truck depicted a 

factory-installed guard. Ex. P-5 at 5; Tr. 133-34. Garay also explained that Caterpillar does not 

install belt and pulley guards on haul trucks intended for use in construction applications, unlike 

those intended for use in the mining industry; therefore, trucks purchased secondhand by mines 

may lack appropriate guards. Tr. 90-91. 

Bryan Lane, operations manager for APAC since 2010, testifying for APAC, stated that 

he accompanied Garay during the inspection of the haul truck. Tr. 162, 175. Shown a photograph 

of the space between the truck body and tire, he opined that it was impossible for miners to 

inadvertently contact the fan belt and pulleys approximately seven feet off the ground, two to 

three feet inside the engine compartment, and behind what he identified as a factory-installed 

pulley guard. Ex. R-1; Tr. 169-71. He acknowledged that equipment operators would perform 

pre-shift examinations, but denied that a miner would contact moving machine parts. Tr. 172. 

He testified that the truck was equipped with grease Zerks requiring daily lubrication, which 

could result in a miner standing in the space between the front tire and body, that the engine 

would not “normally” be running, and that the miner would be facing away from the engine 

compartment. Tr. 173-74. He also contended that when maintenance is performed, the truck is 

shut down. Tr. 172. 

 The record supports a finding that equipment operators and mechanics routinely access 

the 30-inch work space between the truck’s front tire and body to perform pre-shift 

examinations, lubrications, and troubleshooting while the engine is running. I also find, based 

upon the photograph depicting a six-foot tall miner standing in the work space with the engine 

compartment opening adjacent to his head (Ex. R-1), that the compartment was somewhat less 

than six feet above ground and, based on the lack of any concrete measurement and conflicting 

testimony, that the moving parts were recessed 20 to 36 inches within the compartment. I fully 

38 FMSHRC Page 2568
credit Garay’s testimony that the cited haul truck’s belt and pulleys were not guarded based on a 

reasonable inference that the truck was acquired by APAC secondhand, and his observation that 

similar trucks on-site were equipped with factory-installed guards, a contention unchallenged by 

APAC. APAC’s reliance on Hollow Contracting, 18 FMSHRC 2044 (Nov. 1996) (ALJ), is 

misplaced. In that case, the judge vacated a citation alleging a violation of section 56.14107(a) 

after finding that the unguarded belt was not within seven feet of any walking or working 

surfaces. Id. at 2056. In this case, however, considering all relevant factors, especially the 

“vagaries of human conduct,” I find that it is reasonably possible for a miner of average height, 

working within the limited work space while the engine is running, to inadvertently contact the 

moving machine parts, which are entirely reachable although recessed at least 20 inches, through 

extension of the arms precipitated by a misstep, loss of balance, momentary distraction, or 

startlement. This finding takes into account the myriad possible human responses to all manner 

of external stimuli, as well as the protective purpose of the Act. Accordingly, the Secretary has 

established a violation of section 56.14107(a). 

2. Significant and Substantial 

The fact of violation has been established and, respecting the second Mathies criterion, 

the hazard against which section 56.14107(a) is directed is contact with moving machine parts. 

Inadvertent contact with the belt and pulleys was reasonably likely to occur considering that 

miners frequently performed examinations, lubrications, and troubleshooting on uneven ground, 

and accessed the space between the truck’s tire and the body with the engine running, putting 

them within the 20- to 36-inch reachable range of the engine’s moving parts. The third Mathies 

criterion has been met, in that contact with the moving belt and pulleys was reasonably likely to 

result in an injury; and there is a reasonable likelihood that the miner would suffer serious 

disfigurement or loss of a limb, satisfying the fourth Mathies criterion. Therefore, I find that the 

violation was S&S. 

3. Negligence

The Secretary argues that APAC’s negligence was moderate because the unguarded area 

was frequently entered and obvious, that APAC had similar equipment on-site that was 

appropriately guarded, and that Caterpillar manufactures a guard for the haul truck. Sec’y Br. at 

21. I find, based on the miners’ daily access to the tight work space between the truck’s tire and 

body with the engine running, that the hazard of contacting moving parts within the engine 

compartment was obvious. Furthermore, based on APAC’s use at the mine of similar Caterpillar 

trucks outfitted with factory-installed guards, I find that APAC knew or should have known that 

it was required to guard the belt and pulleys so that its miners could perform their tasks safely. 

Accordingly, I conclude that that APAC was moderately negligent in violating the standard. 

 

38 FMSHRC Page 2569
D. Order No. 8760689

 Inspector Garay issued 104(g)(1) Order No. 8760689 on August 5, 2014, alleging a 

violation of section 46.11(a) that was “unlikely” to cause an injury that could reasonably be 

expected to be “permanently disabling,” and was caused by APAC’s “high” negligence.7

 The 

“Condition or Practice” is described as follows: 

Twelve Clarkson Construction Company, Over the Road Truck Drivers, 

Contractor ID# KTL, entering the mine site have not received the required sitespecific hazard awareness training, exposing them to mine hazards. The Mine 

Operator was aware of the training requirements. The mine operator must 

withdraw the Twelve Clarkson Construction Over the Road Truck Drivers from 

the mine until they have received the required training. The Federal Mine Safety 

and Health Act of 1977 states that an untrained miner is a hazard to himself and to 

others. 

Ex. P-4. The citation was terminated when APAC provided MSHA with a photograph of a sign 

outlining site-specific mining hazards. Tr. 73; Ex. R-6. 

1. Fact of Violation 

 

 The Secretary points out that the site-specific hazard training requirement may be 

satisfied by posting warning signs.8

 Sec’y Br. at 15. He makes several contentions in support of 

establishing the violation: that no signage with the requisite warnings was posted at the tarping 

area at the time of the inspection; that if it were, the operator would have discussed it with the 

inspector; that if it were, the operator would not have needed a training video; and that it is 

irrelevant whether other signs were posted elsewhere on-site because they do not satisfy the 

standard. Sec’y Br. at 15-17. 

APAC argues that from 2010 through the time of the inspection, it had a sign in place at 

the tarping area that satisfied the site-specific hazard training requirement, and that the 

Secretary’s contention that the sign was installed after the inspection to abate the violation is 

 7

 30 C.F.R. § 46.11(a) provides that mine operators “must provide site-specific hazard 

awareness training before any person specified under this section is exposed to mine hazards.” 

30 C.F.R. § 46.11(b) requires mine operators to “provide site-specific hazard awareness 

training, as appropriate, to any person who is not a miner as defined by § 46.2 of this part but is 

present at a mine site, including: . . . (4) customers, including over-the-road truck drivers.” 

8

 30 C.F.R. § 46.11(e) provides that mine operators “may provide site-specific hazard 

awareness training through the use of written hazard warnings, oral instruction, signs and posted 

warnings, walkaround training, or other appropriate means that alert persons to site-specific 

hazards at the mine.” 

38 FMSHRC Page 2570
“mistaken or untruthful.” Tr. 125; Resp’t Br. at 4-5. The operator also contends that the 

Secretary has not established that the 12 truck drivers lacked site-specific hazard training 

because the inspector failed to inquire whether the truckers had received any training other than 

formal training. Resp’t Br. at 11-13. In support of this contention, APAC relies on Apex Quarry, 

36 FMSHRC 211 (Jan. 2014) (ALJ). Resp’t Br. at 11-13. In Apex Quarry, the judge vacated an 

order alleging a violation of section 46.11(a) because the inspector only asked the contractors 

whether they had received site-specific hazard training and, therefore, they may not have 

understood the “special meaning of the term ‘training’” in the context of the cited standard. 36 

FMSHRC at 230-31. 

 Garay testified that section 46.11(a) requires APAC to administer site-specific hazard 

training to its customers and that, alternatively, it may post adequate warning signs. Tr. 70. 

Garay also stated that at the beginning of the inspection, APAC’s safety manager, Chris 

Switchman, told him that APAC satisfies the site-specific hazard training requirement by 

showing anyone who comes to the mine a training video in the scale house or office, and then 

issuing a card documenting that the training was received. Tr. 68, 71. Ewing testified similarly, 

but did not name the APAC management employees with whom he spoke. Tr. 236-37. 

According to Garay, 12 Clarkson employees in the tarping area of the mine told him that they 

had not received site-specific hazard training, had not viewed the training video, and had not 

been issued training cards. Tr. 67-69; Ex. R-5. Garay and Ewing both maintained that they 

looked for signs in the tarping area, but found none satisfying the training requirement, that the 

sign posted to terminate the citation was not present on the day of the inspection, and that no 

APAC representative ever raised the idea that a warning sign was posted. Tr. 80-81, 113, 236-38; 

Exs. R-6, R-15. Garay opined that untrained customers would be unlikely to suffer permanently 

disabling injuries as a result of being exposed to heavy equipment operation, blasting, or other 

hazards, because they only travel to limited areas of the mine. Tr. 69. 

 Lane testified that APAC does not show the training video to customers. Tr. 182-83. He 

stated that customer truck drivers are trained using signage posted throughout the facility, 

including the sign used to terminate the citation which, according to him, was in place in the 

tarping area at the time of the inspection, and had been since 2010. Tr. 180-81; Exs. R-6, R-7, R8, R-9, R-10, R-11. 

 The record makes clear that the training video of which the inspectors were advised was 

not shown to the over-the-road truck drivers, and the parties agree that APAC would have 

satisfied the site-specific hazard training requirement if appropriate warning signage were posted 

at the tarping area. See Tr. 78-79; Sec’y Br. at 16. Both inspectors testified that the tarping-area 

sign was not there, and that they specifically looked for such a sign. APAC’s attempt on crossexamination to have Garay identify a zoomed-in object in a photograph as a tarping-area sign 

was an exercise in futility because the image was so indistinct as to appear ethereal. 

Interestingly, in its brief, APAC abandoned any argument that the photograph depicted the 

requisite signage. In consideration of the inspectors’ credible testimony, and the fact that no one, 

including APAC’s safety director, showed the inspectors any sign, I find that no warning signage 

was posted at the tarping area on the day of the inspection. Testimony and exhibits regarding 

signage elsewhere on-site miss the mark because they do not address the hazards identified in the 

38 FMSHRC Page 2571
tarping area. Furthermore, APAC’s reliance on Apex Quarry is not persuasive because here, 

Garay not only questioned the 12 customers and APAC’s safety director about the training, but 

he and Ewing specifically looked for an appropriate warning sign in the tarping area. 

Accordingly, I find that the Secretary has established a violation of section 46.11(a). 

 

2. Gravity and Negligence 

 The record establishes that because the untrained customers only accessed limited areas 

of the mine, they were unlikely to suffer permanently disabling injuries resulting from exposure 

to heavy equipment operation. The Secretary argues that APAC’s negligence was high, however, 

because it was aware that it needed to provide training, as evidenced by its production of the 

training video. Sec’y Br. at 18. I find that APAC knew or should have known of the site-specific 

hazard training requirement and, in failing to train its customers by video or posting appropriate 

signage at the tarping area, that it was exposing its customers to avoidable hazards. Furthermore, 

I do not find that signage elsewhere around the mine mitigates APAC’s negligence because there 

is no evidence that they pertain to the hazards specific to the tarping area. Accordingly, I find 

that APAC was highly negligent in violating the standard. 

E. Citation No. 8760690 

Inspector Garay issued 104(a) Citation No. 8760690 on August 5, 2014, alleging a 

“significant and substantial” violation of section 56.18002(a) that was “reasonably likely” to 

result in an injury that could reasonably be expected to be “permanently disabling,” and was 

caused by APAC’s “high” negligence.9

 The “Condition or Practice” is described as follows: 

The mine operators competent persons did not conduct thorough examinations of 

workplaces at least once each shift for conditions which may adversely affect 

safety or health, in that the daily workplace examinations reviewed, did not 

document any of the conditions cited, which adversely affect safety and health of 

the miners, and attributed to multiple citations and orders issued during the E01 

regular inspection. 

Ex. P-6. 

1. Fact of Violation

The Secretary argues that the obviousness of the cited hazards and the condition of the 

mine demonstrated that APAC was not conducting adequate workplace examinations. Sec’y Br. 

at 23. The Secretary also contends that the examination records do not document all working 

 9

 30 C.F.R. § 56.18002(a) provides that “[a] competent person designated by the operator 

shall examine each working place at least once each shift for conditions which may adversely 

affect safety or health. The operator shall promptly initiate appropriate action to correct such 

conditions.” 

38 FMSHRC Page 2572
areas of the mine, and that testimony that rank-and-file miners also perform examinations should 

be given no weight because there is no documentation of their competence, or any record of such 

examinations. Sec’y Br. at 25-28. 

APAC contends that a competent person performed adequate examinations of all working 

areas prior to each shift, and that the number of citations and orders issued is not determinative 

of the adequacy of those examinations, especially since the inspection was retaliatory, the 

alleged violations were not obvious, and APAC disagrees with nearly all of them. Resp’t Br. at 

13-16. 

 According to Garay, the cited violations were obvious to any competently trained miner 

and, therefore, should have been discovered and recorded through adequate workplace 

examinations. Tr. 98-102. He testified that he reviewed Stoker’s daily log or diary containing 

records of APAC’s workplace examinations, and concluded that Stoker oversaw operations at 

the Bonner Springs and Shawnee quarries and that, regarding Bonner Springs, his records failed 

to identify working areas or hazards, or when they were corrected. Tr. 102-03. Garay opined that 

a plant superintendent and supervisor are competent persons to conduct workplace examinations 

within the meaning of section 56.18002(a). Tr. 158. 

 Lane testified that APAC foreman David Platt and superintendent Stoker, or a competent 

person designated by them, record a diary of activities that they perform throughout the day, 

including work areas that they have examined and whether the examination has been completed. 

Tr. 174, 189, 191; Exs. R-2 (Stoker), R-3 (Platt). Lane testified that Stoker’s diary pertains to the 

Bonner Springs and Shawnee quarries, while Platt’s diary covers only Bonner Springs. Tr. 188. 

Presented with entries in Stoker’s and Platt’s daily logs for July 8, 2014, Lane was unable to 

identify any workplace that either miner had examined. Tr. 190-91; Exs. R-2 at 1, 

R-3 at 1. He offered that another competent person, who he could not identify, may have 

performed the examination on that day, but that he was unaware of any examination records 

other than Platt’s and Stoker’s diaries. Tr. 191-92, 195. 

 Stoker testified that his log entries demonstrate that he examines and records any area of 

the mine that he visits, and that properly trained miners examine their work areas and provide 

him with completed examination record sheets at the end of each shift. Tr. 215-17, 219-21; Ex. 

R-2. He also stated that he did not conduct an examination of the mine on July 8, 2014. Tr. 221; 

Ex. R-2. 

 

 Stoker’s and Platt’s diaries rarely address Bonner Springs’ working areas or conditions 

and, when they do, only in cursory fashion. Neither diary records any hazard identified during 

MSHA’s inspection, nor does either record a workplace examination of any area of Bonner 

Springs on July 8, 2014. It is noteworthy that Stoker’s and Platt’s diaries begin to state, in routine 

fashion, that they examined the Bonner Springs plant, pit, and shop only after MSHA had begun 

its inspection. Stoker’s testimony, that other competent miners conduct examinations of all 

working areas and fill out record sheets, is undermined by Lane’s testimony that he is unaware of 

any documentation other than Stoker’s and Platt’s diaries, by APAC’s failure to provide copies 

of such examination records to Garay during the inspection, and APAC’s failure to move for 

38 FMSHRC Page 2573
their admission into the record at the hearing. Accordingly, I find that APAC failed to perform 

and record adequate examinations of the Bonner Springs workplaces during every shift, and that 

the Secretary has established a violation of section 56.18002(a). 

2. Significant and Substantial 

The fact of violation has been established and, respecting the second Mathies criterion, 

the hazard against which section 56.18002(a) is directed is timely detection and correction of 

workplace hazards. Obvious hazardous conditions were reasonably likely to go undetected and 

promptly corrected by management based on APAC’s failure to conduct adequate workplace 

examinations on a regular basis, and when they did, the examinations were incomplete and 

inaccurately recorded. The third and fourth Mathies criteria have been met, in that failure to 

timely identify and remedy unstable material above the working face of the highwall was 

reasonably likely to result in serious, if not fatal, injuries; likewise, entanglement with unguarded 

moving machine parts was reasonably likely to result in serious disfigurement or loss of a limb. 

Therefore, I find that the violation was S&S. 

3. Negligence

 The Secretary argues that APAC’s negligence was high because it was aware that it was 

required to perform workplace examinations, many hazards were obvious, and its inspection 

records were incomplete and disorganized. Sec’y Br. at 29-30. APAC contends that the alleged 

hazards were not obvious, and that it disagrees with nearly all of the citations and orders. Resp’t 

Br. at 14. In consideration of my findings that the highwall and guarding violations were obvious 

and serious, I find that APAC’s failure to conduct adequate workplace examinations of the mine 

and timely correct identified hazards was the result of high negligence. 

III. PENALTIES 

 While the Secretary has proposed civil penalties totaling $3,070.00, the judge must 

independently determine the appropriate assessment by proper consideration of the six penalty 

criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5 

FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

 Applying the penalty criteria, and based upon a review of MSHA’s online records, I find 

that APAC is a small operator, with an overall history of violations that is a mitigating factor in 

assessing appropriate penalties (in the 15 months preceding the inspection, the operator had been 

cited for violating one standard, unrelated to any at issue in this proceeding). I also find that 

APAC demonstrated good faith in achieving rapid compliance after notice of the violations. 

Furthermore, APAC represents that the proposed penalties will not affect its ability to remain in 

business. Resp’t Br. at 21. 

 The remaining criteria involve consideration of the gravity of the violations, and APAC’s 

negligence in committing them. These factors have been discussed fully, respecting each 

violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set 

forth below. 

38 FMSHRC Page 2574
A. Citation No. 8760649

It has been established that this S&S violation of section 56.3131 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by APAC’s 

moderate negligence, and that it was timely abated. Based on these factors, and considering the 

operator’s violation history as a mitigating factor, I find that a penalty of $450.00 is appropriate. 

B. Citation No. 8760656 

It has been established that this S&S violation of section 56.3130 was reasonably likely 

to cause an injury that could reasonably be expected to be fatal, that it was caused by APAC’s 

moderate negligence, and that it was timely abated. Based on these factors, and considering the 

operator’s violation history as a mitigating factor, I find that a penalty of $450.00 is appropriate. 

C. Citation No. 8760651 

It has been established that this S&S violation of section 56.14107(a) was reasonably 

likely to cause an injury that could reasonably be expected to result in permanently disabling 

injuries, that it was caused by APAC’s moderate negligence, and that it was timely abated. Based 

on these factors, and considering the operator’s violation history as a mitigating factor, I find that 

a penalty of $250.00 is appropriate. 

D. Order No. 8760689 

It has been established that this violation of section 46.11(a) was unlikely to cause an 

injury that could reasonably be expected to result in permanently disabling injuries, that it was 

caused by APAC’s high negligence, and that it was timely abated. Based on these factors, and 

considering the operator’s violation history as a mitigating factor, I find that a penalty of $700.00 

is appropriate. 

E. Citation No. 8760690 

It has been established that this S&S violation of section 56.18002(a) was reasonably 

likely to cause an injury that could reasonably be expected to result in permanently disabling 

injuries, that it was caused by APAC’s high negligence, and that it was timely abated. Based on 

these factors, and considering the operator’s violation history as a mitigating factor, I find that a 

penalty of $800.00 is appropriate. 

IV. APPROVAL OF SETTLEMENT

 The parties have filed a Motion to Approve Partial Settlement respecting 27 of the 32 

citations/orders involved in these dockets. A reduction in penalty from $6,596.00 to $4,617.00 is 

 

38 FMSHRC Page 2575
proposed. The citations/orders, initial assessments, and proposed settlement amounts are as 

follows: 

Docket No. Citation/Order No. 

Initial 

Assessment 

Proposed 

Settlement 

 

CENT 2015-1-M 8760652 $263.00 $263.00 

8760657 $585.00 $969.00 

8760658 $100.00 $100.00 

8760659 $263.00 $0.00 

8760660 $263.00 $0.00 

8760663 $263.00 $263.00 

8760688 $100.00 $100.00 

8760664 $100.00 $100.00 

8760665 $263.00 $263.00 

8760667 $100.00 $0.00 

8760669 $585.00 $0.00 

8760671 $100.00 $100.00 

8760672 $100.00 $100.00 

8760681 $100.00 $100.00 

8760682 $263.00 $0.00 

8760673 $100.00 $100.00 

8760674 $100.00 $100.00 

8760675 $263.00 $263.00 

8760676 $263.00 $0.00 

8760677 $263.00 $263.00 

8760678 $263.00 $263.00 

8760679 $263.00 $0.00 

8760680 $263.00 $0.00 

8760687 $100.00 $100.00 

SUBTOTAL: $5,326.00 $3,447.00 

 

CENT 2015-157-M 8760650 $585.00 $585.00 

8760661 $585.00 $585.00 

8760662 $100.00 $0.00 

SUBTOTAL: $1,270.00 $1,170.00 

 

 TOTAL: $6,596.00 $4,617.00 

 I have considered the representations and documentation submitted in these matters under 

section 110(k) of the Act, and I conclude that the proffered settlement is appropriate under 

section 110(i) of the Act. 

 

38 FMSHRC Page 2576
ORDER

WHEREFORE, it is ORDERED that Citation Nos. 8760659, 8760660, 8760662, 

8760667, 8760669, 8760676, 8760679, 8760680, and 8760682 are VACATED. 

 It is further ORDERED that Citation Nos. 8760649, 8760650, 8760651, 8760652, 

8760656, 8760672, 8760673, 8760674, 8760677, 8760681, 8760690, and Order No. 8760689 are 

AFFIRMED, as issued. 

 It is further ORDERED that the Secretary MODIFY Citation Nos. 8760663, 8760671, 

and 8760687 to reduce the degree of negligence to “low;” Citation Nos. 8760663, 8760665, 

8760675, and 8760678 to reduce the level of gravity to “unlikely,” and remove the “significant 

and substantial” designation; Citation No. 8760658 to allege a violation of 30 C.F.R. § 

56.14107(a) in the alternative, and Citation No. 8760665 to allege a violation of 30 C.F.R. § 

56.14112(a)(1) in the alternative; and Citation Nos. 8760657, 8760658, 8760664, 8760665, 

8760675, 8760678, and 8760688 to incorporate the proposed language in the “Condition or 

Practice;” and that these citations are AFFIRMED, as modified. 

It is further ORDERED that APAC-Kansas, Incorporated, PAY a civil penalty of 

$7,267.00 within thirty (30) days of the date of this Decision.10 ACCORDINGLY, these cases 

are DISMISSED. 

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

 Administrative Law Judge 

Distribution: 

Daniel McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, 

Suite 216, Denver, CO 80204 

Kevin Keating, Oldcastle Law Group, 900 Ashwood Parkway, Suite 600, Atlanta, GA 30338-

4780 

/tcp 

 10 Payment should be sent to: Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket 

number and A.C. number. 

38 FMSHRC Page 2577
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

October 13, 2016 

 

DECISION AND ORDER 

REINSTATING J.S.S. 

Appearances: Pollyanna E.F. Hampton, Esq., Office of the Solicitor, U.S. Department of 

Labor, Arlington, VA, Representing the Secretary of Labor 

R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, PA, Representing 

Respondent 

Before: Judge Steele 

On September 16, 2016, pursuant to section 105(c)(2) of the Federal Mine Safety and 

Health Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of 

Labor (ASecretary@) filed an Application for Temporary Reinstatement of miner James Steven 

Spencer.1 (“Complainant, Spencer, or JSS”) to his former position with Nicholas Contura, LLC, 

(ANicholas Contura@ or ARespondent@) at Jerry Fork Eagle Mine pending final hearing and 

disposition of the case. 

 1

 In order to preserve the Complainant’s privacy regarding health and medical status 

pursuant to the Health Insurance Portability and Accountability Act of 1996, the miner was 

referred to by his initials in the pleadings. However, prior to hearing, the Complainant signed an 

Authorization to Disclose Health Information form authorizing the Department of Labor to 

disclose and use Complainant's health information for the purpose of litigation or potential 

litigation. Joint Stipulations, ¶25 (“Stip.”). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of J.S.S., 

 Complainant, 

 v. 

NICHOLAS CONTURA, LLC, 

 Respondent. 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEVA 2016-615-D 

MSHA Case No.: HOPE-CD-2016-05 

Mine: Jerry Fork Eagle Mine 

Mine ID: 46-08787 

38 FMSHRC Page 2578
The application followed a Discrimination Complaint filed by J.S.S. on August 18, 2016, 

that alleged, in effect, that his termination was motivated by his status as a Part 90 miner.2 The 

Secretary represents that this Complaint was not frivolously brought and requests an Order 

directing Respondent to reinstate J.S.S. to his former position or a comparable position, within 

the same commuting area and with the same rate of pay and benefits he received prior to his 

discharge. 

Respondent filed a timely motion requesting a hearing regarding this application on 

September 26, 2016, wherein it summarized its position. A hearing was held in South 

Charleston, WV, on October 6, 2016, where the Secretary and Respondent each had the 

opportunity to present witnesses and documentary evidence in support of their positions.3 

For the reasons set forth below, I grant the application and order Nicholas Contura LLC 

to temporarily reinstate James Steven Spencer. 

Discussion of Relevant Law 

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

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

play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be 

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

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

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

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

Health Act of 1977, at 623 (1978). 

Congress created the temporary reinstatement as “an essential protection for complaining 

miners who may not be in the financial position to suffer even a short period of unemployment 

or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181, 

95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

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

Health Act of 1977, at 624-25 (1978).

Temporary Reinstatement is a preliminary proceeding and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

2

 30 C.F.R. Part 90 contains the mandatory health standards for coal miners who have 

evidence of the development of pneumoconiosis. 

3

 Under Commission Rule 45, a Temporary Reinstatement hearing must be held within 

10 calendar days of an operator’s request. 29 C.F.R. §2700.45(c). 

38 FMSHRC Page 2579
substantial evidence standard applies.4 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining Awhether the evidence mustered by the miners to date established that

their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990). 

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and federal circuit 

courts have also equated Anot frivolously brought” to Areasonable cause to believe” and Anot 

insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that 

establishing ‘reasonable cause to believe’ that a violation of the statute has occurred is a 

‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 

2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 

250 F.3d 962, 969 (6th Cir. 2001). 

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that there 

was an adverse action, which was motivated in any part by that activity. Sec=y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

In the instant matter, the Secretary and Spencer need not prove a prima facie case of 

discrimination with all of the elements required at the higher evidentiary standard needed for a 

decision on the merits. Rather, the same analytical framework is followed within the “reasonable 

cause to believe” standard. Thus, there must be “substantial evidence” of both the applicant=s 

protected activity and a nexus between the protected activity and the alleged discrimination. To 

establish the nexus, the Commission has identified these indications of discriminatory intent: (1) 

hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3) 

coincidence in time between the protected activity and the adverse action. Sec=y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has acknowledged that it is often difficult to establish a Amotivational nexus 

between protected activity and the adverse action that is the subject of the complaint.@ Sec=y of 

Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The 

Commission has further considered disparate treatment of the miner in analyzing the nexus 

requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

4 ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept 

as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 

229 (1938)). 

38 FMSHRC Page 2580
The Petition for Temporary Reinstatement 

 On August 18, 2016, Spencer executed a Summary of Discriminatory Action, which was 

filed with his Discrimination Complaint. In this statement he alleged the following: 

During a company change over I was not hired back due to being a Part 90 miner. 

I was the only person required to take a physical or breathing test. 

I would like to be reinstated to my previous job classification as supply motor 

operator. I would like to be reimbursed for all back pay, medical bills for my 

family and I and other expense encurred due to the loss of my job. [sic]. 

Application for Temporary Reinstatement at Exhibit B, p. 2. 

The Secretary also submitted with the Application the September 16, 2016, Declaration 

of Kelly Acord, a Special Investigator employed by the Mine Safety and Health Administration 

(“MSHA”). Acord made the following findings and conclusions: 

2) As part of my responsibilities, I investigate claims of discrimination filed by 

miners pursuant to Section 105(c) of the Federal Mine Safety and Health Act 

of 1977 (the “Mine Act”). In this capacity, I have investigated the 

discrimination claim filed by J.S.S. (the “Complainant”) on August 18, 2016. 

My investigation to date has revealed the following facts: 

A. On August 18, 2016, J.S.S. filed a complaint alleging discrimination that 

commenced July 25, 2016 and resulted in his firing on August 15, 2016, after he 

had exercised his Part 90 option at the mine. 

B. At all relevant times hereinafter mentioned, Nicholas Contura, LLC was a 

“person” within the meaning of § 105(c) and within the definition of § 3(f) of the 

Act. 30 U.S.C. § 802(f). 

C. The Complainant was employed as a Supply Motor Operator at the mine, and, 

therefore, is a "miner" within the meaning of § 3(g) of the Act. 30 U.S.C. § 

802(g). 

D. The Complainant worked for Alex Energy, Inc. (a subsidiary of Alpha Natural 

Resources, Inc.) at the mine for approximately two years until August 2016. He 

has approximately 34 years of coal mining experience. 

E. On May 4, 2016 the Complainant exercised his Part 90 option under the Mine 

Act. 

F. By the end of May, the Complainant was moved from his position as a continuous 

miner operator to a less dusty position as a supply motor operator to satisfy the 

Part 90 requirements. Alex Energy, Inc. started running respirable dust samples 

on him as required by Part 90. He was still paid the rate of a continuous miner 

operator, which is typically higher than the rate paid to a supply motor operator. 

38 FMSHRC Page 2581
G. A week or two after moving to the supply motor operator position, the 

Complainant went on short term disability related to hernia surgery. The 

Complainant's personal doctor cleared him to return to work by July 25, 2016. 

H. At this time mine controller Alpha Natural Resources, Inc. was going through 

bankruptcy proceedings. By June, it appeared Nicholas Contura, LLC would be 

purchasing the mine as the company prepared job offer letters for active miners 

who were working at that mine at that time. 

I. A job offer letter dated June 20, 2016 was prepared for the Complainant, however 

it was never delivered. This letter outlined a process under which all active 

employees would be retained when Nicholas Contura, LLC took over operation of 

the mine. Under this process, Nicholas Contura, LLC required any inactive 

employee on temporary disability to undergo a Functional Capacity Evaluation 

(“FCE”) demonstrating the miner's ability to perform essential functions of the 

job. Active miners were not required to undergo an FCE. 

J. At some point in July, human resources manager Robert Blake asked the 

Complainant to obtain a drug test at the training center on mine property. The 

Complainant's drug test came back fine. 

K. On July 25, 2016, the day before the mine sale, Blake and Safety Manager Randy 

Taylor asked to meet with J.S.S. At this meeting Blake and Taylor told the 

Complainant he needed to take a pulmonary capacity test and warned him he 

would not be retained by Nicholas Contura, LLC if a physician determined he had 

complicated coal workers pneumoconiosis. The Complainant responded that they 

knew he had coal workers pneumoconiosis because he was a Part 90 miner and he 

accused them of trying to terminate his employment on this basis. 

L. At no time was the Complainant required to undergo a FCE related to his hernia 

injury. 

M. On August 4, the Complainant travelled to see the respiratory specialist 

designated by Nicholas Contura, LLC. A therapist administered a breathing test, 

but no x-rays were taken and he did not see a doctor. 

N. Dr. Charles E. Porterfield issued a letter elated August 12 stating “[Complainant] 

has complicated pneumoconiosis on chest x-ray/CT scan and should not be 

further exposed to coal dust.” It appears Dr. Porterfield relied on an old chest xray in making his diagnosis as no new x-rays were taken. 

O. The Complainant had previously been diagnosed with complicated 

pneumoconiosis. According to Dr. Afzal Ahmed, the Complainant's September 

30, 2015 chest x-ray showed small opacities of q/r shape in upper, middle, and 

lower zones of both lungs with a profusion of 2/1, indicators of complicated 

pneumoconiosis. This diagnosis was the basis for the Complainant's exercise of 

his Part 90 rights in May 2016. 

P. On August 15, Blake called the Complainant and told him Nicholas Contura, LLC 

would not be keeping him on at the mine. The following day, an Alpha Natural 

Resources, Inc. human resources manager called and told the Complainant it was 

38 FMSHRC Page 2582
his last day with Alpha and offered him Cobra insurance and an 80-hour 

severance package. 

Q. Most of the officers under the new management remained the same, including 

human resources manager Blake and safety manager Taylor. The mine was idled 

for only one day in order to prepare for the sale. After the mine sale, all active 

miners were retained to continue to work at the mine. Miners retained their 

seniority and vacation after the transfer. 

3) There is reasonable cause to believe that the Complainant was discharged because he 

engaged in protected activity when he exercised his Part 90 option under the Mine 

Act. J.S.S. suffered an adverse action when he was discharged on August 15, 2016. 

4) Based on my investigation to this date, I have concluded that there is reasonable 

cause to believe that the Complainant was discharged because he engaged in the 

protected activity of exercising his Part 90 option. I have concluded that the 

complaint filed by Complainant was not frivolous. 

Application for Temporary Reinstatement at Exhibit A, p. 1-5. The Secretary cited this 

declaration as a basis for the formal request for temporary reinstatement. Application for 

Temporary Reinstatement at 2. 

Joint Stipulations: 

 Prior to hearing, the parties submitted the following Joint Stipulations: 

1) This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to Sections 

105 and 113 of the Federal Mine Safety and Health Act of 1977 (“the Act”). 

2) Alex Energy, Inc. was an affiliate of Alpha Natural Resources, Inc. 

3) Alpha Natural Resources, Inc. and 148 related companies, including Alex Energy, filed a 

chapter 11 case under Title 11 in the United States Bankruptcy Court for the Eastern 

District of Virginia (Richmond Division) on August 3, 2015, Bankr. Case No. 15-33896. 

4) Alex Energy, Inc. was operator of the Jerry Fork Eagle Mine in Nicholas County, West 

Virginia, until July 25, 2016. 

5) Nicholas Contura began operating the Jerry Fork Eagle Mine on July 26, 2016 and 

continues to operate this mine. 

6) Nicholas Contura is an affiliate of Contura Energy. 

7) Contura Energy was formed and acquired certain assets of Alpha Natural Resources, Inc. 

out of the bankruptcy, including those that constituted the Jerry Fork Eagle Mine. 

8) The products or operations of the Jerry Fork Eagle Mine enter or affect commerce, within 

the meaning and scope of Section 4 of the Act. 

9) Jerry Fork Eagle Mine is a mine as that term is defined in 30 U.S.C. 802(h). 

10) Nicholas Contura is an "operator" as defined in Section 3(d) of the Act at Jerry Fork 

Eagle Mine. 

38 FMSHRC Page 2583
11) Operations of Nicholas Contura at the Jerry Fork Eagle Mine are subject to the 

jurisdiction of the Act. 

12) Nicholas Contura is a "person" within the meaning of § 105(c) and within the definition 

of § 3(f) of the Act. 30 U.S.C. 802(f). 

13) As of July 25, 2016, Complainant was employed as a Supply Motor Operator at the Jerry 

Fork Eagle mine, and, therefore, was a "miner" within the meaning of§ 3(g) of the Act. 

30 U.S.C. § 802(g). 

14) Complainant worked for Alex Energy, Inc. at Jerry Fork Eagle Mine for approximately 

two years until August 2016. 

15) On May 4, 2016 Complainant exercised his Part 90 option under the Mine Act. 

16) By the end of May, Complainant was moved from his position as a continuous miner 

operator to a position as a supply motor operator to satisfy the Part 90 requirements in 

part because the respirable dust limit for Part 90 miners would be reduced to 0.5mg/m3 

on August 1, 2016 and such new limit would exceed the levels of respirable dust in the 

continuous miner position. 

17) Complainant was off work from June 6, 2016 to July 25, 2016 for nonwork-related hernia 

surgery. 

18) After moving into the supply motor operator position, Complainant was still paid his 

same rate of $32.78 per hour. 

19) Contura Energy prepared a job offer letter dated June 20, 2016 addressed to Complainant, 

but it was never delivered because he was absent on short term disability while having 

hernia surgery. Such offer had certain contingencies. 

20) Immediately prior to July 25, 2016, Robert Blake worked as Brooks Run North Human 

Resources Manager for Alex Energy. 

21) As of July 26, 2016, Robert Blake became Human Resources Manager for Nicholas 

Contura, LLC. 

22) Immediately prior to July 25, 2016, Randy Taylor worked as Safety Manager for Alex 

Energy. 

23) As of July 26, 2016, Randy Taylor became Safety Manager for Nicholas Contura, LLC. 

24) The drug test taken by Complainant at the Nicholas Contura Training Center on July 19, 

2016 was negative for the presence of drugs. 

25) On September 29, 2016 Complainant signed an Authorization to Disclose Health 

Information form authorizing the Department of Labor to disclose and use Complainant's 

health information for the purpose of litigation or potential litigation. 

Resp. Prehearing Statement, 2-5.5

 5

 Hereinafter, the transcript of the proceeding shall be referred to as “Tr.” The Secretary’s 

exhibits shall be referred to as “GX” followed by the number. The Respondent’s exhibits shall be 

referred to as “RX” followed by the number. 

38 FMSHRC Page 2584
Summary of Testimony 

 James Steven Spencer was most recently employed as a supply motor operator at Alex 

Energy’s Jerry Fork Eagle Mine. Tr. 19. He has worked continuously in mining since 1982, first 

running a cut machine and then became a continuous miner operator. Tr. 20. He worked at Jerry 

Fork Eagle Mine for the two years prior to the hearing, with all but the last two weeks as a 

continuous miner operator. Tr. 19. Prior to working at the Jerry Fork Eagle Mine, Spencer had 

worked for Massey and Alpha Natural Resources since 2001. Tr. 19-20. He has never been 

formally or informally disciplined and has never been late to work. Tr. 20-21. 

 Nicholas Contura LLC is a new company that purchased certain mine assets from Alpha 

Natural Resources’ Alex Energy. Tr. 82. The sale from Alpha to Nicholas Contura was 

scheduled to occur on July 25, 2016, but it was carried over to July 26 due to various 

complications. Tr. 85. Most of the miners and management working at the mine were transferred 

to the new company after the bankruptcy. Tr. 60-62. The miners who were transferred over 

retained their seniority. Tr. 62. The mine was shut down for one day, on July 25, to facilitate the 

purchase. Tr. 62. 

 On June 20, 2016, offer letters were prepared to transfer employees from Alex Energy to 

Nicholas Contura. Tr. 83-84. An offer letter was prepared but never sent to Spencer. Tr. 47, 83; 

GX-3. In the section labeled “proposed effective date,” it states, “if you are away from work due 

to disability at the time of the closing on the company’s purchase of Alpha assets, then your 

employment will also be contingent upon you presenting a medical release to return to work, 

passing a functional capacity evaluation (FCE), demonstrating your ability to perform the 

essential functions of the job, with or without reasonable accommodation.” Tr. 48; GX-3. At 

hearing, Spencer testified that he understood the purpose of the FCE as testing one’s ability to 

perform their job. Tr. 49. Though the offer letter had a provision for miners who were out of 

work due to disability, it was not sent to those miners. Tr. 91. 

 Spencer is a Part 90 miner, which means that he must be provided a job that has less dust 

while maintaining the same rate of pay.6 Tr. 21. He was diagnosed with complicated 

pneumoconiosis,7 which is also known as black lung, in September 2015 by Dr. Afzal Ahmed.8

Tr. 21-22. Spencer filed for black lung benefits through the State of West Virginia in September 

2015, but was not awarded any benefits because he passed his breathing test. Tr. 22-23. He has 

not filed for federal black lung benefits. Tr. 23. 

 6

 Part 90 “establishes the option of miners who are employed at coal mines and who have 

evidence of the development of pneumoconiosis to work in an area of a mine where the average 

concentration of respirable dust in the mine atmosphere during each shift is continuously 

maintained at or below the applicable standard as specified in § 90.100.” 30 C.F.R. § 90.1. 

7

 Complicated pneumoconiosis occurs when a pattern of dust fills one’s lungs and stays 

there. Tr. 22. 

8

 Dr. Ahmed is a B Reader, which is a special class of reader denominated by the 

government for reading black lung X-rays. Tr. 51. 

38 FMSHRC Page 2585
 Spencer told Alex Energy that he filed for state black lung benefits and that he was a Part 

90 miner. Tr. 23. On December 10, 2015, Spencer signed a release for HealthSmart to release 

information regarding his occupational disease to his employer for “purposes related to [his] 

occupational disease claim only.” Tr. 41-43; GX-2. Spencer understood this to mean that his 

medical information could only be released for purposes of his black lung benefits claim. Tr. 43-

44. 

 After becoming a Part 90 miner, Spencer was transferred to a supply motor operator 

position, which has less dust exposure than his previous position as a continuous miner operator. 

Tr. 24. The company transferred Spencer because the dust limit for Part 90 miners was scheduled 

to be reduced from 1 to .5 milligrams per cubic meter on August 1, 2016. Tr. 53. When Spencer 

was being sampled for dust before his medical leave, the results were less than half a milligram, 

but they showed some level of dust exposure. Tr. 54. Spencer agreed that any job at the mine 

would have some exposure to dust. Tr. 54. Spencer worked as a motorman for two weeks before 

he took medical leave for hernia surgery.9 Tr. 25. Though the motorman position typically pays 

less than the continuous miner position, under Part 90 his pay remained the same. Tr. 25. 

 Prior to Spencer’s hernia surgery, he had taken medical leave for open heart surgery, 

lower lumbar surgery, knee surgery, and to have a cyst removed from his back. Tr. 26-27. In 

previous instances, he always returned to work following the surgeries by providing a work 

release from his doctor. Tr. 27, 64-65. He was never previously required to take a breathing test 

before returning to work. Tr. 27. 

 While Spencer was on short-term disability leave, he heard from others at the mine that 

job offer sheets were being distributed and had to be submitted by July 15, 2016. Tr. 28. Spencer 

reached out to Alex Energy Mine Superintendent Dave Tharp and Human Resources Manager 

Robert Blake.10 Tr. 28. They told Spencer not to worry about submitting paperwork, and “we’ll 

take care of it when you come back. We’ll get you fixed up when you come back.” Tr. 29. On 

July 18, Spencer followed up with Tharp and Blake. Tr. 29. He told Tharp that he had an 

appointment with his personal doctor, Dr. Bandy Mullins, on July 21 and anticipated being 

released to come back to work. Tr. 29. Tharp told Spencer to call Blake to tell him, and Spencer 

did so. Tr. 29. Blake told Spencer that he had to have a drug test, and invited Spencer to get it 

performed at the Britten building on mine property. Tr. 30. Spencer took the drug test on July 19, 

and passed. Tr. 30, 32. 

 While on mine property, Spencer ran into Alex Energy safety director Bill Kell, as well 

as Robert Blake. Tr. 31. Spencer was in the middle of running his preventive dust measures for 

the motorman job, and Kell asked him if he would be able to return to work on Monday, July 

 9

 Though Spencer believed that his hernia was likely work-related, he did not file a 

workers’ compensation claim. Tr. 25. 

10 Nicholas Contura human resources manager Robert Blake testified on behalf of the 

Respondent. Tr. 81-82. Prior to working for Nicholas Contura, Blake worked for Alex Energy 

and Alpha Natural Resources at the Jerry Fork Mine and Power Mountain Prep Plant in the same 

capacity. Tr. 82. 

38 FMSHRC Page 2586
25.11 Tr. 31-32. Spencer responded that he believed he would be released by then. Tr. 31. Kell 

told Spencer that he would get Spencer’s pumps ready for Monday, and said to tell Blake that he 

would be returning to work then. Tr. 34. Spencer called Blake and told him he would return on 

Monday, and Blake responded, “Okay, I’ll see you Monday,” but then before he hung up, said, 

“Wait, wait, let me run this by higher-ups and make sure all is in order.” Tr. 34. 

 At Spencer’s July 21 doctor’s appointment, Spencer’s personal doctor, Dr. Bandy 

Mullins, gave Spencer a release to return to work, starting July 25, 2016. Tr. 25-26, 33; GX-1. 

Spencer testified that after he was released on July 25, he was able to perform the duties of a 

motorman. Tr. 49. 

 Blake called Spencer the next morning, Friday July 22, at 9:00 a.m. and told him that he 

would have to go to a physical. Tr. 35. Spencer believed that the physical would be to test his 

ability to lift because of his hernia surgery. Tr. 35. 

 On July 25, Blake called Spencer and told him that he needed to come to the main office 

at the mine because Kingston Mine safety director Randy Taylor and he needed to talk to 

Spencer.12 Tr. 36. At the meeting, Taylor and Blake told Spencer that in order to return to work 

he would have to have a breathing test. Tr. 36-37. Blake said, “You can’t pass that, can you?” Tr. 

37. Spencer responded that he had always previously performed well on his breathing test, and 

asked if there would be additional X-rays. Tr. 37. Blake said that there likely would be, and 

Spencer responded that an X-ray would show pneumoconiosis. Tr. 37. Blake responded, “You’re 

not complicated, are you?” Blake was aggravated at this question because they were aware that 

he had complicated pneumoconiosis due to his status as a Part 90 miner. Tr. 37. He believed that 

the comment was made because he was a Part 90 miner. Tr. 38. 

 At hearing, Spencer testified that though people don’t say anything directly about Part 90 

miners, “there is a shadow over Part 90 miners.” Tr. 38. Because they require less dust exposure, 

such miners are often treated as a nuisance. Tr. 38. Spencer felt that they were trying to get rid of 

him because he was a Part 90 miner. Tr. 38. Blake told Spencer that if the test came back 

showing that he had complicated pneumoconiosis, he would not be offered a position at Nicholas 

Contura. Tr. 38. Spencer described the atmosphere at the meeting as “tense” because his 

experience with Blake led him to believe that “something definitely was...up.” Tr. 39. 

 After the meeting, Taylor told Spencer, “Hey, I hope you go down there and take your 

test and everything comes back and you’re back down there at Jerry Fork on a motor.” Tr. 39. 

Spencer believed that this meant that if he passed the breathing test, he could come back to work. 

Tr. 39. 

 11 Preventive dust measures are used to check dust levels due to Spencer being a Part 90 

miner. Tr. 32. 

12 Nicholas Contura safety manager Randy Taylor testified at hearing on behalf of 

Respondent. Tr. 94. Prior to working for Nicholas Contura, Taylor was the safety manager for 

Kingston Mining, which was a subsidiary of Alpha. Tr. 94. 

38 FMSHRC Page 2587
 The company directed Spencer to see Dr. Charles Porterfield, and they paid for the 

appointment. Tr. 40. Spencer went to Dr. Porterfield’s office in Beckley, West Virginia, for his 

FCE and pulmonary capacity test. Tr. 39. Spencer did not see a doctor during this visit, or have 

an X-ray taken. Tr. 40. He did not bring any medical records or his black lung benefits 

paperwork to the visit. Tr. 40-41. Instead, he saw a respiratory therapist named Teresa Hughes, 

who performed the breathing test.13 Tr. 40. Hughes told Spencer that he did all right on his 

breathing test. Tr. 40. 

 Dr. Porterfield faxed a letter to Nicholas Contura LLC on August 10, 2016.14 GX-5. It 

states that the pulmonary function studies demonstrates a slight reduction in FVC and FEV1 with 

normal ratio. Tr. 69. It further states that “Volume studies demonstrate a slight increase in the 

RV/TLC ratio. Diffusion is normal.” GX-5. Special Investigator Kelly Acord testified that he 

understood this diagnosis to be positive, meaning that Spencer passed his breathing test.15 Tr. 69-

70. 

 Blake received the August 10 letter from Dr. Porterfield and sent it to management 

because there was no interpretation in it. Tr. 87-88. Management told Blake to contact Dr. 

Porterfield’s office and “ask for an interpretation,” which Blake did. Tr. 88. Blake also provided 

Dr. Porterfield with certain medical records for Spencer. Tr. 88. Blake could not recall 

specifically which records he sent, but he believed that he at least sent Dr. Ahmed’s diagnosis. 

Tr. 93. In response, Dr. Porterfield sent a second letter on August 15, 2016, which reads in full, 

“Mr. James S Spencer has complicated pneumoconiosis on chest x-ray/CT scan and should not 

be further exposed to coal dust. If you have any further questions feel free to call or write.”16 Tr. 

88; GX-5. Blake reported this to management, and testified that as a result there was a decision 

not to offer Spencer a job. Tr. 88. 

 Acord interviewed Dr. Porterfield, and Porterfield confirmed that he did not examine 

Spencer. Tr. 70. Instead, his technician, Teresa Hughes, examined him. Tr. 70. Porterfield said 

that based on that examination he felt that Spencer could function as a coal miner. Tr. 70. 

Porterfield said that his second letter was based primarily on the X-ray and CT scan that he 

received from Blake. Tr. 70. Dr. Porterfield told Acord that he could not recall why the two 

letters were sent five days apart. Tr. 75. 

 13 No evidence was presented as to the qualifications of Teresa Hughes. 

14 The letter is not dated, but has a facsimile transmission mark that indicates it was sent 

on August 10, 2016. 

15 District 4 MSHA Special Investigator Kelly Acord was the primary investigator on 

Spencer’s case, while Perry Brown also worked as a special investigator on the case. Tr. 70. 

Kelly Acord testified for the Secretary at hearing. Tr. 58. He has been employed with MSHA 

since March 2005, starting as a general inspector for two and a half years before moving to the 

special investigation department. Tr. 59. 

16 The letter is dated August 12, 2016, but the facsimile transmission mark indicates that 

it was sent on August 15, 2016. 

38 FMSHRC Page 2588
 On August 12, Tharp told Spencer that Nicholas Contura might not have to take anyone 

back who was on short-term disability. Tr. 44. On or about August 15, Spencer called Blake to 

find out the results of his breathing test, and Blake said he would check and get back to him. Tr. 

45. Blake called Spencer back and told him that due to Dr. Porterfield’s findings they did not 

have a position for him at Nicholas Contura. Tr. 45. The following day, Spencer spoke to Alpha 

Natural Resources human resources director Kyle Bane, and Bane told him that it was the last 

day of his insurance with Alpha and offered him a two-week severance package and COBRA 

insurance. Tr. 45. Bane further told Spencer that he believed it was wrong that he was being fired 

from the mine. Tr. 46. 

 Spencer believes that he was discriminated against because he was a Part 90 miner. 49-

50. Spencer was aware of one other Part 90 miner at the mine, and Spencer believes that he is 

currently working for Nicholas Contura. Tr. 51-52. The other Part 90 miner was not on shortterm disability, so the company did not have the opportunity to question him about his status or 

require him to take a functional capacity evaluation. Tr. 57-58, 73. Acord was told that there was 

one miner who was on workers’ compensation for a foot injury that had to take some tests before 

returning to work. Tr. 71, 84. This miner was sent to Dr. Orr, who is a general practitioner, and 

only had to perform basic tests involving his leg movement. Tr. 72. He was then sent to Dr. 

Porterfield for a breathing test and passed. Tr. 72. 

Findings and conclusions 

 The Secretary argues that Spencer engaged in protected activity when he exercised his 

Part 90 rights, and that the Respondent discriminated against him by firing him for exercising 

those rights. 

 The Respondent argues that its decision not to hire Spencer was unrelated to his status as 

a Part 90 miner, but rather had everything to do with Dr. Porterfield’s letter. Because this letter 

stated that Spencer should not be exposed to any coal dust, and there are no jobs at the mine that 

meet such restrictions, Spencer was not offered a position. Further, the Respondent argues in its 

prehearing submissions that Spencer was not “fired,” but rather not “hired,” indicating that he 

was not a miner, but rather an applicant who is not entitled to temporary reinstatement under the 

Act.17

 Spencer was a Miner Rather than an Applicant for Employment 

 Section 105(c)(2) of the Mine Act provides, in relevant part: 

Any miner or applicant for employment or representative of miners who believes that he 

has been discharged, interfered with, or otherwise discriminated against by any person in 

violation of this subsection may, within 60 days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination.... [I]f the Secretary finds that 

 17 Though the parties appear to stipulate that, as of July 25, 2016, Spencer was a “miner” 

within the meaning of the Act, the Respondent raised this issue in a pre-hearing pleading, so this 

issue will be addressed. Stip. ¶13. 

38 FMSHRC Page 2589
such complaint was not frivolously brought, the Commission, on an expedited basis upon 

application of the Secretary, shall order the immediate reinstatement of the miner pending 

final order on the complaint.... [Emphases added.] 

30 U.S.C. §815(c)(2). The Commission has interpreted the language of this provision as limited 

to miners, rather than applicants for employment.18 Sec’y of Labor, MSHA, on behalf of Piper v. 

KenAmerican Resources, Inc., 35 FMSHRC 1969, 1971-72 (July 2013). However, multiple 

Commission decisions have not looked narrowly at a Complainant’s status at the time of the 

adverse employment action, but rather at his status when he engaged in protected activity or 

when discriminatory actions were taken against him. See Piper v. KenAmerican, 35 FMSHRC 

1969 (July 2013), Sec’y on behalf of Pappas v. CalPortland Co., 38 FMSHRC 137 (Feb. 2016). 

 In Piper, 35 FMSHRC 1969, the Complainant filed a discrimination complaint as a result 

of his inclusion in a reduction in force, alleging that it was due to his making a prior safety 

complaint. The Secretary initially filed an application for temporary reinstatement, but several 

weeks later filed a motion to dismiss the application after determining that the facts disclosed 

during the investigation did not support a violation of the Act. However, in the interim, the 

company began recalling miners, and did not include Piper as one of the recalled miners. As a 

result, he filed a second discrimination complaint, alleging that he was being discriminated 

against because he filed the initial discrimination complaint. The Commission affirmed the 

ALJ’s finding that the Complainant was at all times a “miner,” rather than an applicant for 

employment because the “genesis” of the complaint occurred while he was working as a miner. 

38 FMSHRC at 1972. 

 Similarly, in Pappas, 38 FMSHRC 137, the Complainant engaged in protected activity,

made a discrimination complaint, and was reinstated as part of a settlement when the mine was 

owned by Martin Marietta. However, when CalPortland began taking steps to purchase the mine 

it contacted Martin Marietta’s human resources manager for advice on hiring decisions. The ALJ 

concluded that the Complainant, who was not rehired by CalPortland, was a “miner” when he 

applied for the job, stating: 

Pappas was no stranger off the street applying for a position at the Oro Grande cement 

plant but had an extensive employment history at the mine. Pappas's discrimination 

complaint relates back to decisions made while he was still employed at the mine .... 

CalPortland's structured termination and application process for the Oro Grande 

workforce does not materially alter Pappas's status as a miner eligible for temporary 

reinstatement under section 105(c)(2) of the Mine Act. 

38 FMSHRC at 140 (quoting ALJ decision). The Commission affirmed the ALJ’s findings and 

noted that “the courts have taken a realistic view of these transactions, and acknowledged that 

employees caught up in these corporate changes nevertheless may be protected.” Id. at 143. It is 

further noted that the transition from the asset seller to the purchaser “was almost seamless. Most 

 18 The term “miner” is defined in section 3(g) of the Act, 30 U.S.C. § 802(g), as “any 

individual working in a coal or other mine.” 

38 FMSHRC Page 2590
of the CalPortland employees were working at the same mine, and the same jobs they held when 

Martin Marietta owned the assets, and the human relations director remained the same.” Id. 

 The facts as presented at hearing in the instant case are even more compelling in finding 

that Spencer was a “miner.” Spencer exercised his Part 90 miner rights with Alex Energy on 

May 4, 2016, prior to the purchase by Nicholas Contura. Tr. 23; Stip. ¶15. As a result, Spencer 

was moved from his position as a continuous miner operator to a position as a supply motor 

operator. Stip. ¶16. Spencer then went on short-term disability leave from June 6, 2016, to July 

25, 2016, for hernia surgery. Stip. ¶17. On July 26, 2016, Nicholas Contura completed its 

purchase of the Jerry Fork Eagle Mine and began operating it. Tr. 85; Stip. ¶5. Much of the 

personnel from Alex Energy, including human resources personnel and miners, continued their 

positions at the mine under Nicholas Contura, retaining their job titles and seniority. Tr. 60-62; 

Stip. ¶¶ 20-23. The decisions to make Spencer take a breathing test, and then not offer him 

employment at Nicholas Contura, was made in significant part by Blake and other human 

resources personnel that continued from Alex Energy. Tr. 31-40, 44-46. Further, the transfer of 

assets and personnel was so seamless that the mine was only shut down for one day to facilitate 

the purchase. Tr. 62. 

 According to these circumstances, Spencer remained at all times a miner. He had worked 

at the Jerry Fork Eagle Mine for two years. Tr. 19. Spencer was released to return to work on 

July 25, 2016, and should have been afforded the opportunity to do so. Instead, he was required 

to remain off work until such time as the mine purchase was complete, and then not offered 

employment with the new company. 

Spencer Engaged in Protected Activity and Suffered an Adverse Employment Action 

 The Complainant engaged in protected activity when he exercised his Part 90 rights 

under the Mine Act. Part 90 provides coal miners who have evidence of the development of 

pneumoconiosis the option to work in an area of the mine where the average concentration of 

repirable dust in the mine atmosphere during each shift is continuously maintained at or below .5 

milligrams per cubic meter of air. 30 C.F.R. §§ 90.1, 90.100. Spencer exercised his Part 90 rights 

on May 4, 2016. Stip. ¶15. Part 90 was promulgated pursuant to Mine Act section 101(a), 45 

Fed.Reg. 80,760 (1980), and Section 105(c)(1) lists as protected when “such miner, 

representative of miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 101.” 30 U.S.C. §815(c)(1). 

Therefore, the exercise of these rights is clearly protected activity under Section 105(c)(1) of the 

Act. 

 Further, Spencer suffered an adverse employment action when he was not offered 

continued employment at the mine. 

 A Nexus Existed Between the Protected Activity and the Adverse Employment Action 

As discussed supra, to obtain a temporary reinstatement a miner must raise a nonfrivolous claim that he engaged in protected activity with a connection, or nexus, to an adverse 

employment action. 

38 FMSHRC Page 2591
Having concluded that Spencer engaged in protected activities and suffered an adverse 

employment action, the examination now turns to whether that activity has a connection, or 

nexus, to the subsequent adverse action. The Commission recognizes that direct proof of 

discriminatory intent is often not available and that the nexus between protected activity and the 

alleged discrimination must often be drawn by inference from circumstantial evidence rather 

than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has 

identified several circumstantial indicia of discriminatory intent, including: (1) hostility or 

animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in 

time between the protected activity and the adverse action; and (4) disparate treatment of the 

complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 

3 FMSHRC at 2510. 

Knowledge of the protected activity 

According to the Commission, “the Secretary need not prove that the operator has 

knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there 

is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090 citing

Chicopee Coal Co., 21 FMSHRC at 719. In fact, evidence is sufficient to support a finding of 

knowledge if an operator erroneously suspects a miner made safety complaints, even if no 

complaint was made. See Moses v. Whitley, 4 FMSHRC at 1478. 

In the instant matter there is sufficient evidence of knowledge of the various protected 

activities to meet the evidentiary threshold. The nature of exercising one’s Part 90 rights requires 

the miner to tell the company that he is exercising those rights. In the instant case, Spencer told 

personnel at Alex Energy that he filed for state black lung benefits and that he was a Part 90 

miner. Tr. 23. Various Alex Energy personnel, including human resources manager Blake and 

safety manager Taylor, stayed on at Nicholas Contura. In various discussions and meetings with 

Spencer, these individuals made it clear that they knew of Spencer’s status as a Part 90 miner. 

Therefore, there is no question that the operator had knowledge of Spencer’s protected activity. 

Coincidence in time between the protected activity and the adverse action 

The Commission has accepted substantial gaps between the last protected activity and the 

adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) and 

Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 16-

month gap existed between the miners= contact with MSHA and the operator=s failure to recall 

miners from a lay-off; however, only one month separated MSHA=s issuance of a penalty 

resulting from the miners= notification of a violation and that recall failure). The Commission 

has stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive. Surrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.’” All 

American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 

523, 531 (Apr. 1991). 

 In the instant matter, Spencer was only at his Part 90 job transfer for two weeks before he 

left on short-term disability leave. Another seven weeks elapsed between the beginning of 

Spencer’s June 4 short-term disability leave and his July 25 release to return to work. As a result, 

38 FMSHRC Page 2592
I find that the time span between the protected activities and the adverse action is sufficient to 

establish a nexus. 

Hostility or animus towards the protected activity 

The Commission has held, “[h]ostility towards protected activity—sometimes referred to 

as ‘animus'—is another circumstantial factor pointing to discriminatory motivation. The more 

such animus is specifically directed towards the alleged discriminatee's protected activity, the 

more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). 

In the instant case, there are a host of actions that could constitute animus towards 

Spencer’s protected activities. In the July 25 meeting Blake evinced a hostile view towards 

employees who had been diagnosed with pneumoconiosis. Though Blake was aware of 

Spencer’s condition, he insisted on asking him about his pneumoconiosis, “you’re not 

complicated, are you?” Tr. 37. Blake then told Spencer that if the test shows that he had 

complicated pneumoconiosis he would not be offered a position at Nicholas Contura. Tr. 38. 

These statements were made prior to Spencer visiting Dr. Porterfield’s office, and therefore 

contradict the Respondent’s argument that the only reason it did not offer Spencer his position at 

the mine was because of Dr. Porterfield’s second letter.19 

In addition to these statements, the operator’s requirement that Spencer visit their doctor 

smacks of animus towards Spencer’s status as a Part 90 miner. Nicholas Contura’s policy of 

requiring employees who are out on disability at the time of the closing to receive an evaluation 

before returning to work is a reasonable means of testing whether the employee has fully 

recovered from the injury or illness that required him to take leave before returning to work. 

However, in this instance, Spencer was cleared by his doctor to return to work on July 25, which 

is one day prior to the closing. Therefore, he should have never been required to pass an FCE. 

Further, even if he had been required to pass an FCE, it should have been limited to matters 

related to his hernia surgery. Instead, the only examination Spencer received was to test his 

breathing. Tr. 40. 

Following what appears to be Spencer’s passing his breathing test, as memorialized in 

Dr. Porterfield’s August 10 letter, the operator sent Porterfield Spencer’s medical records and 

asked for “an interpretation.”20 Tr. 88. Based on a review of these medical records and whatever 

 19 It should further be noted that no evidence was presented at hearing as to the 

qualifications of Dr. Porterfield—who according to his letterhead is a Doctor of Osteopathic 

Medicine and a Fellow of the American Academy of Sleep Medicine—in reading and 

interpreting Spencer’s x-ray or CT scan. 

20 Based on the evidence presented at hearing, there are serious questions as to whether 

the operator was permitted to share Spencer’s medical records with Dr. Porterfield. Spencer 

signed a release with HealthSmart to release his medical records to his employer for “purposes 

related to [his] occupational disease claim only.” Tr. 41-43; GX-2. He did not release the 

operator to share those records in any way they chose. Further, it is distressing that at hearing 

Blake could not even recall which medical records he sent to Dr. Porterfield. Tr. 93. 

38 FMSHRC Page 2593
was requested of Dr. Porterfield, he issued a second letter, which in no way appears to be “an 

interpretation” of the first letter. GX-5. The first letter relates entirely to Spencer’s breathing test 

in somewhat positive terms, whereas the second letter relates to a chest x-ray/CT scan that the 

company provided to the doctor. Dr. Ahmed took the scans in September 2015 and interpreted 

them to determine that Spencer had complicated pneumoconiosis. GX-4. However, he never 

stated that Spencer could not be exposed to any level of coal dust. But Dr. Porterfield, who never 

met Spencer or took any examinations or scans of his chest, interpreted Dr. Ahmed’s scan to 

draft a single sentence diagnosis that stated that Spencer “should not be further exposed to coal 

dust.” GX-5. Every step in this course of events evinces animus, and combined shows an 

arguable coordinated attempt to get rid of a Part 90 miner.21

Disparate Treatment 

“Typical forms of disparate treatment are encountered where employees guilty of the 

same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which 

befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate 

treatment is not necessary to prove a prima facie claim of discrimination when the other indicia 

of discriminatory intent are present. Id. at 2510-2513. 

In the instant matter, the Respondent argued that one other Part 90 miner was retained at 

Nicholas Contura, as well as one miner who was on disability for a foot injury. Tr. 51-52, 71, 84. 

These miners are not similarly situated to Spencer, as neither was both a Part 90 miner and on 

short-term disability. 

Conclusion 

In concluding that Spencer’s complaint herein was not frivolously brought, I find that 

there is reason to believe that Spencer engaged in a variety of protected activity. I further 

conclude that the Secretary has met its burden in showing that there was a nexus between 

Spencer’s protected activities and the operator’s declining to offer him his position at the mine. 

ORDER 

 For the reasons set forth above, it is ORDERED that Complainant James Steven 

Spencer be immediately reinstated by Respondent to his former position, or the equivalent, at 

the same rate of pay, hours worked, and with all other benefits he was receiving at the time of 

his discharge, effective the date of this decision. 

 

 21 Indeed, Dr. Porterfield’s cursory conclusion that a miner with complicated 

pneumoconiosis should not be exposed to any coal dust essentially nullifies Part 90 for such 

miners. 

38 FMSHRC Page 2594
 The court retains jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 

2700.45(e)(4). The Secretary shall complete the investigation of the underlying discrimination 

complaint as soon as possible. Immediately upon completion of the investigation, the Secretary 

shall notify counsel for Respondent and this court, in writing, whether a violation of Section 

105(c) of the Mine Act has occurred. Id. 

 /s/ William S. Steele 

William S. Steele 

 Administrative Law Judge 

Distribution (Via E-mail and Certified Mail): 

Pollyanna E.F. Hampton, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, 

Arlington, VA 22202-5450, hampton.polly@dol.gov

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite 

1500, Pittsburgh, PA 15222, rhmoore@jacksonkelly.com 

38 FMSHRC Page 2595
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, COLORADO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 18, 2016 

 

DECISION AND ORDER

Appearances: John A. Lauer, Office of the Solicitor, Denver, Colorado, for Petitioner; 

 Chad Meyer, pro se, Dickinson, North Dakota, for Respondent. 

Before: Judge Miller 

 These cases are before me upon a petition for assessment of a civil penalty filed by the 

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

1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve five citations issued pursuant to 

Section 104(a) of the Mine Act, one citation and one order issued pursuant to Section 104(d), and 

one order issued pursuant to Section 104(g). The proposed penalties total $4,642.00. The parties 

presented testimony and evidence regarding these citations at a hearing held in Bismarck, North 

Dakota, on August 31, 2016. Based upon the parties’ stipulations, my review of the entire 

record, my observation of the demeanors of the witnesses, and consideration of the parties’ legal 

arguments, I make the following findings and order. 

Meyer Aggregate’s (“Meyer”) Plant 2 is a small portable surface sand and gravel mine in 

Golden Valley County, North Dakota, that normally employs three people. Tr. 15:12-14. The 

parties have stipulated that Meyer is an “operator” as defined in Section 3(d) of the Mine Act, 30 

U.S.C. § 803(d), and is subject to the jurisdiction of the Commission. At Plant 2, Meyer’s 

miners use a dozer to dig up and loosen sand and gravel and transport it to a feeder via a frontSECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

MEYER AGGREGATE LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2015-654 

A.C. No. 32-00964-391773 

Docket No. CENT 2015-655 

A.C. No. 32-00964-391773 

Docket No. CENT 2016-73 

A.C. No. 32-00964-394388 

Docket No. CENT 2016-74 

A.C. No. 32-00964-394388 

Docket No. CENT 2016-243 

A.C. No. 32-00964-403208 

Mine: Plant 2 

38 FMSHRC Page 2596
end loader. Tr. 21. From the feeder, the miners move the material into a screener and crusher, 

which separates and stacks the product to be sold and unloaded. Id. 

Seven of the citations addressed below were issued by inspector Alan Roberts in August 

2015 at the Plant 2. Inspector Roberts worked as a MSHA inspector for 13 years and is now a 

training specialist. Tr. 18:15-23. Prior to working for MSHA, Roberts worked at Hutchison Salt 

Mine in Kansas, where he was an underground superintendent and was in charge of up to 100 

employees. Tr. 20:11-13. The eighth citation was issued in January 2016 by inspector Robert 

Lindeman at the Reich Pit. He has been an MSHA inspector for 15 years and has inspected 

Meyer’s portable operations in the past. Tr. 108-110. 

I. PRINCIPLES OF LAW 

The Secretary has the burden to prove each citation and its elements. The Secretary has 

designated a number of the violations as Significant and Substantial and two of the violations 

were designated as an unwarrantable failure to comply with a mandatory standard. 

A. Establishing a Violation 

To prevail on a penalty petition, the Secretary bears the burden of proving an alleged 

violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). The Secretary may establish a violation by inference in certain situations, but 

only if the inference is “inherently reasonable” and there is “a rational connection between the 

evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152-53 (Nov. 1989). 

B. Significant and Substantial 

A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) 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 S&S “if based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation is S&S: 

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: (1) the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the hazard 

 

38 FMSHRC Page 2597
contributed to will result in an injury; and (4) a reasonable likelihood that 

the injury in question will be of a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The second element of the Mathies test addresses the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC __, No. 

WEVA 2011-283, slip op. at 5 n.8 (Aug. 29, 2016). The Commission has explained that the 

“hazard” should be defined in terms of the prospective danger the cited safety standard is 

intended to prevent. Id. at 6. The likelihood of the occurrence of the hazard must be evaluated 

with respect to “the particular facts surrounding the violation.” Id.; see also McCoy Elkhorn Coal 

Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the third step, 

the judge must assess whether the hazard, if it occurred, would be reasonably likely to result in 

injury. Newtown, slip op. at 5. The existence of the hazard is assumed at this step. Id.; Knox 

Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the 

likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect 

to specific conditions in the mine. Newtown, slip op. at 7. Finally, the Commission has held that 

the S&S determination should be made assuming “continued normal mining operations.” 

McCoy, 36 FMSHRC at 1990-91. 

C. Negligence 

The Commission has emphasized that the Secretary’s regulations apply to the Secretary’s 

proposal of penalties only, and are not binding on the Commission. Brody Mining, LLC, 37 

FMSHRC 1687, 1701 (Aug. 2015). The Commission instead directs its judges to “evaluate 

negligence from the starting point of a traditional negligence analysis . . . . Under such an 

analysis, an operator is negligent if it fails to meet the requisite standard of care—a standard of 

care that is high under the Mine Act.” Brody, 37 FMSHRC at 1702. In evaluating an operator’s 

negligence, the judge should consider “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulation.” Jim Walter Res., 36 FMSHRC 1972, 1975 

(Aug. 2014). 

While the Secretary’s regulations focus on the presence or absence of mitigating 

circumstances in determining the level of negligence, 30 C.F.R. § 100.3, the Commission has 

indicated that Commission judges are not limited to this analysis and “may find ‘high 

negligence’ in spite of mitigating circumstances or may find ‘moderate’ negligence without 

identifying mitigating circumstances.” Brody, 37 FMSHRC at 1702-03. High negligence is 

characterized by “an aggravated lack of care that is more than ordinary negligence.” Id. at 1703. 

D. Unwarrantable Failure 

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C. 

§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct 

constituting more than ordinary negligence. [It] is characterized by conduct described as 

‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable 

38 FMSHRC Page 2598
care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (citations omitted) (quoting Emery 

Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987); Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991)). In determining whether a violation is an unwarrantable failure, 

the Commission has instructed its judges to consider all of the relevant facts and circumstances 

in the case and determine whether there are any aggravating or mitigating factors. Id. 

Aggravating factors to be considered include: 

the length of time that the violation has existed, the extent of the 

violative condition, whether the operator has been placed on notice 

that greater efforts were necessary for compliance, the operator’s 

efforts in abating the violative condition, whether the violation was 

obvious or posed a high degree of danger, and the operator’s 

knowledge of the existence of the violation. 

IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353. 

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Citation No. 8933001 (CENT 2016-74) 

On August 12, 2015, Roberts and inspector trainee Danny Cooper visited the Plant 2 

Mine near the Kurdna Pit. Tr. 13. Roberts and Cooper examined the product stockpile upon 

their arrival. Tr. 13, 25:15-17. Meyer had sold the stockpile to Dunn County, North Dakota, and 

county employees were loading and transporting gravel at the time of the inspection. See Tr. 21. 

The stockpile was approximately 40 feet tall and the inspectors noticed visible cracks, fissures, 

sheer walls, and undercuts near the vertical face. Ex. G-18, G-19. The material was wet and was 

drying out and trickling down, and Roberts testified that he could hear the product shifting and 

moving on the stockpile. Tr. 30-31. He observed an estimated 100-ton portion of the stockpile 

fall and land approximately 20 feet out from the stockpile and 10 feet from the inspection party. 

Tr. 35:1-17. 

Two county trucks were loading gravel from the stockpile and another truck was parked 

nearby. Tr. 27-30. The miner removing the material and the truck drivers were Dunn County 

employees. Tr. 45: 11. Roberts testified that he also observed miners on foot within 50 feet of 

the stockpile. Tr. 31: 12-18. The loader operator was undercutting the pile and creating an 

overhang as he removed material. Tr. 28. Furthermore, the tracks on the ground indicated that 

the loader and the trucks were operating in a dangerous location under the stockpile. Tr. 29:20-

30:3. Roberts was concerned that the stockpile could fall and cause fatal crushing injuries, 

especially during the inspection and walkaround of the truck parked nearby. Tr. 28: 4-10. He 

cited the mine for a violation of 30 C.F.R. § 56.3130, which requires in part, that: 

Mining methods shall be used that will maintain wall, bank, and

slope stability in places where persons work or travel in 

performing their assigned tasks. 

38 FMSHRC Page 2599
The Secretary alleges that the violation was S&S and the result of Meyer Aggregate’s 

high negligence and unwarrantable failure to comply with the standard. Ex. G-18. The proposed 

penalty is $2,000.00. 

30 C.F.R. § 56.3130 requires mines to maintain the bank and slope stability of stockpiles 

in areas where miners work and travel. The Commission has determined that the mine operator 

has a responsibility to maintain an area of unstable ground and remove hazardous conditions 

before work or travel takes place. Connolly-Pacific Co., 36 FMSHRC 1549, 1553 (June 2014). 

The standard is a “clear” and “performance-oriented standard” intended to require mining 

methods that maintain ground stability. U.S. Silica Co., 37 FMSHRC 1736, 1742 (Aug. 2015) 

(ALJ) (citing Connolly-Pacific Co., 36 FMSHRC 1549, 1553 (June 2014), Cyprus Tonopah 

Mining Corp., 15 FMSHRC 367, 374 (Mar. 1993)). 

It is undisputed that the stockpile was unstable and that individuals were working on it 

during the inspection. Inspector Roberts’s photographs show that the stockpile was sheer at a 

steep angle and had visible cracks. Ex. G-19. He testified to seeing large amounts of material 

shift and fall from the pile. Foreman Roger Friedt admitted to Inspector Roberts that he knew 

that the stockpile was unstable, but Meyer did not barricade the area or take any other steps to 

reduce or abate the danger prior to allowing county employees to work on the stockpile. Tr. 41. 

Meyer argues that it was not responsible for maintaining the stockpile because Dunn 

County purchased the pile from the mine and only Dunn County employees were working on the 

stockpile. Tr. 41:20-24. I find that the stockpile was nonetheless a part of Meyer’s operation, 

and that Meyer was liable for maintaining it. Meyer excavated the gravel and placed it in the 

stockpile and the stockpile was located on the mine site. Tr. 21:17-20, 43:5-11. Both Meyer and 

Dunn County had a responsibility to proactively maintain its safety and stability under the 

standard and therefore both entities were properly cited for the violation. Tr. 212; Ex. G-18. I 

find that the Secretary has demonstrated a violation of 30 C.F.R. § 56.3130. 

Inspector Roberts designated the violation S&S. I have determined that Meyer violated 

the mandatory safety standard, satisfying the first element of the Mathies test. The violation also 

contributed to a discrete safety hazard. Section 56.3130 is designed to prevent persons and 

equipment from being engulfed by material that sloughs from poorly maintained walls, banks, 

and slopes. 30 C.F.R. § 56.3130. Meyer’s failure to properly maintain the stockpile clearly 

resulted in the stockpile’s cracks and sheer faces that could slough off of the pile and engulf and 

injure nearby employees. Roberts personally witnessed a 100-ton portion of the stockpile fall 

and land 10 feet from the inspection party. A miner, whether on foot or in the cab of a piece of 

equipment, could not escape from the falling material and could be suffocated and killed. 

Roberts testified that another such fall was reasonably likely and could be fatal. Tr. 36. He 

based his testimony on three fatalgrams in which similar material falls killed miners, one of 

which Roberts investigated himself. See Tr. 36:23-37:7; Ex. G-21. While Roberts did not know 

the exact height of the stockpiles in the fatalgrams, he testified that they were not as tall as the 

Meyer stockpile. Tr. 38. I credit Inspector Roberts’s experience and testimony and find the 

violation to bean S&S violation. 

38 FMSHRC Page 2600
Roberts designated the violation as high negligence. Foreman Friedt acknowledged that 

the stockpile was dangerous and yet took no action to mitigate or abate the violation until the 

citation was issued. Tr. 41:20-24. I find that high negligence is appropriate. 

I find further that Roberts correctly designated the violation as an unwarrantable failure. 

The violation existed for at least one shift. Tr. 42:21-24. The Commission has found that the 

existence of a hazard for a “matter of seconds” may weigh against an unwarrantable failure 

finding, but that its existence for minutes may support such a finding. U.S. Silica Co., 37 

FMSHRC 1736, 1746 (Aug. 2015) (ALJ) (citing Midwest Material Co., 19 FMSHRC 30 (Jan. 

1997)). While one shift is not an exceptionally long period of time, the condition of the stockpile 

exposed miners to the hazard for many hours. 

The size and hazardous condition of the stockpile was extensive, obvious, and posed a 

high degree of danger. The photographs of the stockpile clearly show steep faces and undercuts, 

and the pile was estimated to be nearly 40 feet high. See Tr. 27:19-20; Ex. G-19. The entire east 

and south side of the stockpile posed a danger to miners. Tr. 43. Meyer admitted to Roberts that 

it was aware of the danger posed by the stockpile but did not believe it was their responsibility to 

maintain it. Moreover, Roberts observed an estimated 100 tons of material slough off of the 

stockpile during the inspection. That amount is more than enough to kill or seriously injure the 

miners in the vicinity of the stockpile. Meyer was not placed on notice for this or a similar 

condition and had not been cited for a similar violation. However, Meyer did nothing to abate 

the condition until after the citation was written, despite the fact that it recognized the danger that 

the stockpile posed. I therefore find, given the facts and circumstances presented, that the 

duration, extent, obviousness and high degree of danger of the stockpile constitute an 

unwarrantable failure. I assess the proposed penalty of $2,000.00. 

B. Citation No. 8933002 (CENT 2015-654) 

Inspector Roberts next observed that the rear door of a storage van was open and did not 

have a chain handrail to protect miners when they entered the van to retrieve supplies. Ex. G-1. 

The opening was 42 inches above the ground. Id. Miners normally used a small stairway at the 

front of the storage van to store and retrieve tools and supplies on a daily basis and only used the 

rear doors for loading oil barrels. Tr. 56, 60. Roberts noted, however, that one of the two rear 

doors of the storage van was open and that no loading was taking place. Tr. 60. The supervisor 

went inside the storage van and closed the door during the inspection and explained that it was 

not normally left open. Tr. 56:3-6. Roberts testified that other similar vans had handrails, and 

thus the supervisor knew that this van should have one as well. Tr. 56. He issued Citation No. 

8933002 for a violation of section 56.11002, which requires that “Crossovers, elevated 

walkways, elevated ramps ...shall be provided with handrails, and maintained in good 

condition.” Roberts alleges that the violation was the result of moderate negligence and not 

S&S. The proposed penalty is $100.00. 

I find that this part of the van was an elevated walkway and required a handrail or barrier 

across the rear opening. The photographs clearly show that the rear door was open, the walkway 

was elevated, and that tools and oil were stored in the back of the storage van next to the doors. 

See Ex. G-2. Miners would have to walk across the storage van from the stairway to access the 

38 FMSHRC Page 2601
stored equipment and could fall through the open door. Meyer argues that its miners normally 

entered the van through the side and only opened the rear doors to load larger equipment into the 

storage van. The doors were closed immediately after loading was complete. See Tr. 60:3-4, 

133-36; Ex. G-2. However, I credit Roberts’s testimony that the rear door was open and no 

loading was in progress during the inspection. Thus, the storage van required a handrail or other 

stabilizing device to prevent miners from falling to the ground as they walked around the rear of 

the storage van. 

I find that the violation was the result of low negligence because Meyer had placed chain 

handrails in similar vans but believed it was not necessary here. I credit the testimony that 

miners usually used the stairway on the front side of the storage van and only opened the rear 

doors to load large equipment and therefore find that Meyer was only slightly negligent. I assess 

a penalty of $100.00. 

C. Citation No. 8933003 (CENT 2015-654) 

Inspector Roberts issued Citation No. 8933003 for an alleged violation 30 C.F.R. § 

56.14112(b). A hinged guard door on the crusher was left slightly ajar. See Ex. G-4, G-5. 

Behind the guard are moving parts. Tr. 62:23-63:6. Roberts believed that the guard door had a 

latch at one time, but that it was missing, and that signs of rust indicate that it had been missing 

for some time. Tr. 63:24-64:5. Meyer asserts that it secured the guard door with a wire and that 

the door had probably been opened the day before to remove debris and had not been secured the 

next morning. Tr. 138:3-5, 155:12-16. The opening was approximately five feet from the 

ground and 10 square inches in size. Tr. 63:9-13. Section 56.14112(b) provides that “Guards 

shall be securely in place while machinery is being operated, except when testing or making 

adjustments which cannot be performed without removal of the guard.” The Secretary alleges 

that the violation was non-S&S and the result of moderate negligence. The proposed penalty is 

$100.00. 

The photographs provided by the Secretary indisputably show that the guard door was 

open and unsecured. Ex. G-5. The opening was large enough to expose miners to an 

entanglement hazard. Roberts testified that the machine was in operation on the morning of the 

inspection, though it was not running when Roberts inspected the guard. Tr. 63:16-20. I credit 

his testimony and find that the guard door was open while the machine was capable of being 

operated. 

I also find that the open door did not fit into the narrow exception of the standard. 

Section 56.14112(b) contains a narrow exception for when machinery is operated for testing or 

adjustments that cannot be performed without removing the guard. See Hi Valley Crushing Inc., 

21 FMSHRC 1158, 1160 (Oct. 1999) (ALJ). Miner Arnold Friedt testified that they opened the 

door to clean out material that had fallen inside the crusher and caused problems with the Vbelts. Tr. 137:13-22. The crusher had become clogged the night before and the miners decided 

not to unclog it until morning. Tr. 153:22-154:6. However, Foreman Roger Friedt testified that 

he was unsure why the guard door was unsecured, as the miners usually used a different door 

below the guard to clean out the machine. Tr. 153:13-16. I therefore find that the Secretary has 

proven the violation as alleged. 

38 FMSHRC Page 2602
Inspector Roberts designated the violation as moderate negligence because workplace 

exams had been performed on the crusher and screener but that the hazard itself was not easily 

observable. Tr. 64-65. I agree that the negligence was moderate and assess a penalty of 

$100.00. 

D. Citation No. 8933004 (CENT 2015-655) 

Inspector Roberts observed a significant buildup of spilled gravel on two ends of the 

elevated walkway beside the Cedarapids crusher/screener. Tr. 67:11-14. A supervisor accessed 

the walkway daily to check the screens. Tr. 70:12-17; 75:24-764. The walkway is a slippery, 

uneven surface and Roberts believed that a miner could slip, trip, or fall on the gravel and sustain 

a leg injury, or possibly fall off of the 10-foot high walkway and be killed. Tr. 74:21-24. 

Foreman Friedt told Roberts that he was aware that the spill had occurred but did not 

clean it up immediately. Tr. 73:2-7. Roberts understood Friedt to say that the spillage had been 

there for a week, but Friedt meant that the crusher had been clogging for the past week. Tr. 73:2-

7, 176:1623. Friedt testified that the spillage had actually occurred the night before, and that he 

intended to clean the spill once the crusher was in working condition and before starting 

production the next morning. Tr. 166:18-21, 167:12-15. He is trained to keep the walkway 

clean and recalled that he had been in trouble in the past for failing to do so, and that he did not 

intend to allow that to happen again. Tr. 167:17-19. Further, Friedt testified that he usually 

climbed up to one of the other two sides of the walkway, which were clean at the time the 

citation was issued. Tr. 167:6-11, 178-79. He indicated that he could check the screens from the 

clean areas without walking over the spillage. Tr. 178-79. Roberts did not take photos of the 

two clean sides of the walkway, but admitted that they were clean and orderly at hearing. Id. 

Roberts issued Citation No. 8933004 for a violation of 30 C.F.R. § 56.20003(a), which 

requires that “At all mining operations[,] [w]orkplaces, passageways, storerooms, and service 

rooms shall be kept clean and orderly.” Inspector Roberts designated the violation as S&S and 

the result of high negligence, and an unwarrantable failure to comply with the standard. Id. 

 Section 56.20003(a) requires a showing that (1) the cited area is a “workplace” and a 

“passageway,” and (2) the area is not being kept clean and orderly. 30 C.F.R. § 56.20003(a); See 

Tim M. Ball, Employed by Mountain Materials, Inc., 38 FMSHRC 1799, 1808 (July 2016) 

(ALJ). It is clear that the walkway qualifies as a “workplace” and as a “passageway” and was 

not kept clean and orderly. Miners accessed the walkway at least once a shift to check the bolts 

and the screen. Tr. 178:18-25, 176:6-7. Photographs presented by the Secretary show large 

amounts of spilled rock on the elevated walkway in two areas, one at each end of the crusher. 

Ex. G-13. Walking on or crawling over the material put the miner in a position to lose his 

balance and fall over the handrail. Thus, I find that the Secretary has proven a violation. 

In considering Inspector Roberts’s S&S designation, I have already determined that 

Meyer violated the mandatory safety standard by failing to keep the walkway clean and orderly. 

The violation also constitutes a discrete safety hazard. Keeping the elevated walkway clear of 

obstructions aims to prevent miners from having to walk or crawl over uneven spillage, where 

they may lose their balance and fall. Over the course of continuous mining operations, standing, 

crawling, or walking on the walkway was reasonably likely to result in an injury. The walkway 

38 FMSHRC Page 2603
was nearly 10 feet above the ground and a falling injury could be serious or even fatal. 

Accordingly, I find that the violation was S&S. 

Based upon his conversation with Foreman Friedt, Inspector Roberts designated the 

violation as the result of high negligence. Friedt knew about the spill and had been instructed to 

keep the walkway clear in the past. The spill was obvious and covered two ends of the walkway. 

Friedt elected not to shovel the walkways until the next morning even though he had been trained 

to keep them clear. Thus, I find that a high negligence designation is appropriate. 

However, I find that the violation did not constitute an unwarrantable failure. Inspector 

Roberts designated the violation as an unwarrantable failure because the hazard was obvious and 

extensive, covering two areas of the walkway. Tr. 76:6-8, 77:17-19. The violation had not been 

present for more than one night. Inspector Roberts mistakenly understood Foreman Friedt to say 

that the spillage had been there for a week when Friedt meant that the crusher had been clogging 

for the past week. Friedt credibly testified that the spill occurred the previous evening and he 

intended to clean it up the following morning before resuming operations. He also admitted that 

he had every intention to keep the walkway clean prior to anyone walking in the area. I have no 

reason to doubt that Foreman Friedt was honest about the spill, and credit his testimony 

accordingly. 

Additionally, the violative condition was not as extensive as Inspector Roberts alleged. 

While spillage was obvious on two ends of the walkway, both parties acknowledged that other 

areas of the walkway were kept clean and orderly. I credit Foreman Friedt’s testimony that the 

side of the walkway, where there was a ladder to access the walkway was used to check the 

screens and did not contain spillage. Further, Friedt could see the screens from that side, and he 

did not climb or walk over the material. Tr. 167:6-11. 

Meyer was not placed on notice that greater efforts were necessary and received no 

citations of this nature in the past. Again, I credit Foreman Friedt’s testimony that he normally 

abates the spillage after it occurs, and that on this one occasion waited until the next morning to 

clear it off before operating the crusher. The violation was obvious but did not pose a high 

degree of danger because two sides of the walkway were indisputably clear of spillage and 

allowed Friedt to check the screens without walking over the spill. In weighing the 

unwarrantable failure factors in this circumstance, the unwarrantable failure designation is 

vacated. I therefore assess a reduced penalty of $1,200.00. 

E. Citation No. 8933005 (CENT 2016-73) 

Roberts observed that the windshield wiper on a Case SR200 skid loader did not 

function. Ex. G-15. The loader operates in areas of foot traffic and in dusty and wet weather. 

Tr. 80:2-9. Roberts believed that the broken wiper exposed miners in the area to the hazard of 

being struck by the loader. Tr. 82:3-4. Meyer admits that the wiper did not work at the time of 

the inspection, but argues that it worked earlier that morning when Foreman Friedt tested the 

loader. Tr. 169. Meyer changed a blown fuse to abate the citation. Id. 

Roberts cited the mine for a violation of section 56.14100(b), which provides that 

“Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely 

38 FMSHRC Page 2604
manner to prevent the creation of a hazard to persons.” He designated the violation non-S&S 

and the result of moderate negligence. Ex. G-15. The proposed penalty is $100.00. 

To establish a violation of § 56.14100(b), the Secretary must prove that there was a 

defect in the equipment, that the defect affected safety, and that it was not corrected in a timely 

manner. See 30 C.F.R. § 56.14100(b). Here, Meyer does not dispute that the windshield wiper 

failed to activate when the inspector asked the operator to start it. The defect also clearly affects 

the safety of the skid loader. The skid loader is used on a daily basis all over the plant, mostly to 

clean up material spills. Tr. 79:9-17. Lack of a functioning wiper would impede the operator’s 

visibility and create a hazard to the loader operator and other miners working in the area. Tr. 

80:10-15. 

The main issue regarding the violation here is whether the mine failed to correct the 

defect “in a timely manner.” The Commission addressed the timeliness requirement of § 

56.14100(b) in Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001), which involved a lockout 

device. The Commission determined that “[w]hether the operator failed to correct the defect in a 

timely manner depends entirely on when the defect occurred and when the operator knew or 

should have known of its existence.” Id. at 715. Here, Foreman Friedt admitted that the wiper 

failed to work during the inspection, but testified that it did work earlier that morning when he 

checked the skid loader prior to using it. The inspection sheet produced by the operator 

confirmed that the wiper was working during the pre-shift inspection, and the photograph shows 

wiper marks on the skid loader’s windshield. See Ex. G-16. Friedt testified that he had to 

replace a fuse in order to repair the wiper, indicating that the fuse may have blown after the 

morning pre-check. I find that Meyer had no reason to know that the wiper was defective and 

therefore could not have corrected the defect in a timely manner. The citation is therefore 

vacated. 

F. Citation No. 8933006 (CENT 2015-654) 

Inspector Roberts examined a Cat D8L Dozer and noted that the vehicle was missing 

handholds on both sides. Tr. 84:12-15; Ex. G-7. He observed the dozer in use during the 

inspection, and testified that miners used the dozer throughout the day, sometimes in wet and 

muddy conditions. Tr. 85:5-19, 86:2-4. Miners stood on the tire and grabbed under the metal 

areas of the dozer to reach the cab. Tr. 99:14-17. Roberts asserted that miners could slip and fall 

and sustain broken bones when attempting to climb into the Dozer by standing on one of its tires. 

Tr. 87:9-88:1. 

Roberts cited a violation of section 56.11001, which requires that “Safe means of access 

shall be provided and maintained to all working places.” A “working place” is defined as “any 

place in or about a mine where work is being performed.” 30 C.F.R. § 56.2. He designated the 

violation as S&S and the result of moderate negligence. Ex. G-7. The Secretary proposed a 

penalty of $100.00. 

Inspector Roberts testified that he issued this citation because the dozer had no handrails 

or grips for miners to hold while climbing up onto the dozer. Tr. 84:12-15. The dozer cab is 

clearly a “working place” because Inspector Roberts observed the dozer in operation and 

testified that it is used often and in all weather conditions. No safe access was provided to the 

38 FMSHRC Page 2605
cab. The photographs indicate that each side of the dozer had a handrail when it was 

manufactured but that both were missing at the time of the inspection. Tr. 84:12-15; Ex. G-8. 

Climbing into the cab by standing on the dozer’s tire is not a safe means of access. A miner 

entering or exiting the dozer could slip and fall without the handrails, especially in wet or 

inclement weather, and could be seriously injured or killed. Meyer argues that the dozer did not 

have handrails when it was purchased. Even so, the argument does not absolve them of liability 

because they were required to provide, not merely maintain, safe access to the cab. Since there 

are no handholds or rails for miners to grab in order to pull themselves up and enter the cab, I 

hold that Meyer violated the standard. 

I further find that the violation is S&S and the result of Meyer’s moderate negligence. I 

have determined that Meyer violated the mandatory safety standard. Section 56.11001 is 

designed to prevent miners from being injured as they enter a working place. The lack of 

handrails to hold onto and pull oneself up, indicates that the access was not safe. Failure to 

provide a safe means to access the dozer cab is reasonably likely to result in a miner slipping and 

hitting the side of the equipment or falling to the ground. Miners have to face the dozer to get in 

and out of it and could fall approximately three feet backwards onto the ground, which could be 

made of rock or other hard material. Further, the dozer is accessed frequently and in all types of 

weather, and it is likely that such an injury would amount to broken bones or head and back 

injuries. Therefore, the violation is significant and substantial. Moderate negligence is 

appropriate because it is clear that the dozer lacked handrails for quite some time. I assess a 

penalty of $100.00 as proposed. 

G. Citation No. 8933007 (CENT 2015-654) 

Inspector Roberts observed county employees using a loader to load a truck out of the 

mine’s product stockpile in conjunction with Citation No. 8933001, discussed above. The loader 

operator was undercutting the stockpile in a dangerous manner and was not properly trained to 

identify unsafe practices. Tr. 49:11-17. The county employees were working in an area where 

material may slough off of the stockpile. Tr. 48:7-21. None of the county employees had 

received site-specific hazard awareness training. Id. Roberts issued Citation No. 8933007 for an 

alleged violation of 30 C.F.R. § 46.11(b), which states: 

You must provide site-specific hazard awareness training, as 

appropriate, to any person who is not a miner as defined by § 46.2 

of this part but is present at a mine site... 

The Secretary alleges that the violation was S&S and the result of moderate negligence. 

Ex. G-10. The proposed penalty is $142.00. 

Meyer argues that the county owns the stockpile and therefore Meyer has no authority 

over county employees. Tr. 157-158. Meyer asserts that the county employees only worked 

near the stockpile and did not travel into the pit. Tr. 158:11-12. Foreman Friedt testified that the 

equipment near the stockpile was the property of the county, and that the county drivers and 

loaders have more experience than many of the miners. See Tr. 161:20-162:2, 195:2-6. He 

explained that they were trained by the county and knew what they were doing when loading the 

stockpile. Tr. 161:20-162:7. 

38 FMSHRC Page 2606
While Meyer no longer owned the stockpile or the equipment nearby, Meyer is 

nonetheless responsible for the safety of any non-employee who enters their mine site. The 

county employees were not directly employed by Meyer, but the stockpile where the men were 

working was located on the mine site. Section 46.2 defines “mine site” as “an area of the mine 

where mining operations occur” and the extraction, crushing and screening of the gravel 

constituted mining operations. See 30 C.F.R. § 46.2(f) and (h). Meyer excavated the gravel 

from the pit and used the stockpile to store the product for sale and transport. Tr. 21:17-20. The 

stockpile was located on the mine site and near the pit. Tr. 43:5-11. Thus, Meyer was 

responsible for ensuring the safety and proper training of non-employees that entered the Mine 

site and therefore, the failure to provide hazard recognition training violated the standard. 

The violation is properly designated as S&S and the result of moderate negligence. I 

have found a violation of a mandatory safety standard. The standard is designed to give persons 

who are non-employees and not familiar with the mine, a brief overview of the various hazards 

that may be present on the mine site. Not being trained is a hazard in itself and could result in a 

serious accident because the county employees would be unable to recognize the dangers posed 

by the stockpile or the areas and equipment around the stockpile. An untrained person, 

unfamiliar with the surroundings, is likely to be involved in an accident. Such an accident would 

be reasonably likely to result in permanently disabling or in fatal injuries. Friedt testified that he 

was not aware that he should have trained the miners, even though they were working on the 

mine site near the stockpile. Though Foreman Friedt thought that the county employees were 

experienced, he still should have required the employees to undergo site-specific training for 

unloading material from the stockpile and while working around the mine’s equipment or 

travelling through its areas. Thus, I uphold the S&S and moderate negligence violations and 

assess a penalty of $142.00. 

H. Citation No. 8932505 (CENT 2016-243) 

On January 13, 2016, Inspector Lindeman visited the Plant 2 Mine near the Reich Pit. Tr. 

13. During the inspection, Meyer was preparing to re-locate the Plant. Tr. 110: 10-15. 

Lindeman observed that the road entering the mine between the pit and the stockpile was not 

bermed. Tr. 111:3-5. Lindeman testified that the unbermed area was approximately 150 feet 

long and 22 feet wide with a drop-off of six feet. Tr. 111, 114. The road was the main road to 

reach the mine equipment. Tr. 120:14-17, 129:11-16. Lindeman was concerned that a person 

entering the mine coming around the stockpile could drive off the road and into the pit. Tr. 

115:8-16. He cited the mine for a violation of 30 C.F.R. § 56.9300(a), which requires that 

“Berms 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.” Lindeman designated the violation not S&S and the result of moderate negligence. 

Ex. G-22. The Secretary proposed a penalty of $100.00. 

The plain language of section 56.9300(a) requires the judge to decide (1) whether ‘a 

drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

equipment,’ and if so, (2) whether any berms or guardrails exist.” See Lakeview Rock Products, 

Inc., 33 FMSHRC 2985, 2988 (Dec. 2011). Neither the testimony nor the photographic evidence 

leaves any doubt that no berm existed on the roadway in question. In addition, the witnesses 

38 FMSHRC Page 2607
explained that there was a drop-off sufficient to cause a vehicle to overturn or endanger persons 

in equipment. The photograph shows that the unbermed section was about 150 feet long with a 

drop-off of six feet. Were a vehicle to drive too close to the unbermed area, the grade of the 

drop-off was steep enough to cause a vehicle to roll or endanger the miner operating the vehicle. 

See Tr. 115:8-16. 

Meyer argues that the steep grade could not cause a vehicle to overturn because nobody 

was present at the mine while the work was being completed. Arnold Friedt operates equipment 

and has worked at the mine for three years. Tr. 123:10-21, 124: 10-12. Friedt was in a dozer 

doing reclamation work at the end of the pit and knocking down the berm when the inspection 

began. Tr. 125:12-17. He testified that he was filling in the area below the berm so that there 

would be no drop-off and was in the process of sloping the area. Tr. 126:13-18. The plan was to 

finish sloping the area and reset the Plant on the other side before anyone else arrived in the area. 

Tr. 128:20-23. 

However, Mr. Friedt admitted during cross-examination that other miners were due to 

return to the mine site shortly and that the road would not have been sloped down by the time of 

their arrival. Tr. 129:17-130: 13. Further, the road at issue was the entrance to the mine site and 

was elevated. Anyone coming in and out of the mine site used the road. The toilet and fueler 

were both located off of the road and the miners would have gone back and forth along the road 

to use these facilities. Tr. 113:3-19. Tire tracks are visible in the photograph and indicate that 

the road was used frequently and recently. Ex. G-23. While the employees were aware of the 

missing berm and parked in a safe zone, Meyer did not put up any signs or barricades to prevent 

anyone unfamiliar with the mine site from entering the property while work was ongoing. Tr. 

113:14-17. I find that a violation has been shown. 

I also find Lindeman’s moderate negligence and non-S&S designations to be appropriate. 

While no berm was in place and the drop-off could cause a vehicle to overturn or cause danger to 

equipment, the miner was working on the area and did not expect anyone other than employees 

to travel the area. The mine was not expecting the fuel man or the toilet cleaner at that time and 

thus the exposure was limited. I therefore uphold the citation as written and assess the proposed 

$100.00 penalty. 

III. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must 

consider six statutory penalty criteria: the operator’s history of violations, its size, whether the 

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

the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping 

with this statutory requirement, the Commission has held that judges must make findings of fact 

38 FMSHRC Page 2608
on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion “bounded by proper 

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty 

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

The history of assessed violations has been admitted into evidence and shows nothing 

unusual in the history, particularly as it relates to the guards. It shows no violations in the 15 

month period. The parties agree that the citations were abated in good faith and the mine has 

raised no defense of ability to pay. The negligence and the gravity have been discussed above 

with each citation. Based upon my consideration of the penalty criteria, I find the following 

penalties to be appropriate. 

 

38 FMSHRC Page 2609
Citation No. Originally Proposed 

Assessment Settlement Amount Modification 

Docket No. CENT 2016-73 

8933005 $100.00 -- Vacate. 

Docket No. CENT 2016-74 

8933001 $2,000.00 $2,000.00 None. 

Docket No. CENT 2015-654 

8933002 $100.00 $100.00 Modify to low negligence. 

8933003 $100.00 $100.00 None. 

8933006 $100.00 $100.00 None. 

8933007 $142.00 $142.00 None. 

Docket No. CENT 2015-655 

8933004 $2,000.00 $1,200.00 Remove Unwarrantable 

Failure Designation. 

Docket No. CENT 2016-243 

8932505 $100.00 $100.00 None. 

GRAND 

TOTAL 

$4,642.00 $3,742.00 

IV. ORDER 

Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $3,742.00 

within 30 days of the date of this decision. 

 Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

38 FMSHRC Page 2610
Distribution: (U.S. First Class Certified Mail) 

John Lauer, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 216, 

Denver, CO 80204 

Chad Meyer, Meyer Aggregate, LLC, 944 24th Street West, Dickinson, ND 58601 

38 FMSHRC Page 2611
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

 

October 18, 2016 

DECISION ON REMAND 

Appearances: Courtney Przybylski, Esq., & Ryan L. Pardue, Esq., U.S. Department of 

 Labor, Office of the Solicitor, Denver, CO for the Secretary

 Jason W. Hardin, Esq., & Mark Kittrell, Esq., Fabian and Clendenin, Salt 

 Lake City, UT for Respondent 

Before: Judge John Kent Lewis 

PROCEDURAL HISTORY

On September 20, 2013, the undersigned ALJ issued a decision concerning the above 

dockets, affirming five citations1 issued by the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) to the American Coal Company (“Am Coal”), including the 

significant and substantial (“S&S”) designations for each violation. Further, this Court assessed a 

total penalty of $43,200 for the five violations at issue, rather than the total of $69,600 proposed 

by MSHA by special assessment. 35 FMSHRC 3077 (Sept. 2013) (ALJ).

 1

 Although the caption in the Commission’s Remand Decision lists Docket No. LAKE 

2011-881, the citations in said docket were settled prior to the within hearing. The originally 

assessed penalty for these violations was $61,678 and the approved settlement was $29,068. The 

citations still at issue on remand involve four violations of § 75.202(a) at Docket Nos. LAKE 

2011-962 and LAKE 2012-58 and a violation of safeguard, Citation No. 8432052, § 75.1403 at 

Docket No. LAKE 2011-962. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 

 v. 

THE AMERICAN COAL COMPANY, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

 Docket No. LAKE 2011-701 

 A.C. No. 11-02752-253416-01 

 Docket No. LAKE 2011-962 

 A.C. No. 11-02752-262111-01 

 Docket No. LAKE 2012-58 

 A.C. No. 11-02752-268036-01 

 

 Mine: New Era Mine 

38 FMSHRC Page 2612
Am Coal filed a petition for discretionary review on or about October 29, 2013, 

essentially challenging the propriety of the Secretary’s special assessments and this Court’s 

ultimate determination of penalties. The Commission granted Am Coal’s request for review onor 

about October 30, 2013, and held oral argument on April 20, 2016. In a Remand Decision dated 

August 22, 2016, Commissioners Young, Cohen, and Althen, vacated in part this Court’s 

September 20, 2013, decision, remanding “for further clarification” of this Court’s penalty 

assessments.2

SUMMARY OF THE TESTIMONY AND THE FACTUAL RECORD

The ALJ hereby incorporates the summary of testimony as contained in his September 

20, 2013, hearing decision and factual background as contained in the Commission’s August 26, 

2016, remand decision as though fully recited herein. 2016 WL 5868551 (Aug. 26, 2016). 

I. Review of Commission Remand Decision (Majority Opinion) 

In the “Disposition” section of its remand decision, the Commission explained that a 

Judge’s assessment must be independent and that the Secretary’s (penalty) proposal “is not a 

baseline or a starting point that the Judge should use (as) a guidepost for his/her assessment.” 

(RO at 4)3. While the Commission held that this Court “did engage in a significant discussion of 

the evidence,” it nonetheless held that the decision “could be read to indicate,” that this Court 

had “used the Secretary’s special assessment as a starting point.” (RO at 4). Therefore in order to 

assure the independence of the assessment, the Commission remanded the cases for 

reconsideration and further explanation. (RO at 4). 

In its remand decision (Section A), the Commission reviewed the statutory and regulatory 

law supporting the Secretary’s broad discretion in proposing penalties under the Mine Act. (RO 

at 4-6). The Commission noted that special assessments are governed by 30 C.F.R. § 100.5 and 

that this regulation does not state conditions warranting a special assessment. (RO at 5). “The 

decision to issue a special assessment rather than a regular penalty is wholly within MSHA’s 

discretion.” 

The Commission further noted that MSHA’s Narrative Findings for a Special Assessment 

(“Narrative”) do not state specific reasons for the decision to issue a special assessment and 

“provide little or no substantive information.” (RO at 4). The Narrative provided only a “cursory 

and summary statement,” of the penalty criteria for each violation. (RO at 4). 

In summary the Secretary is not required to explain the basis for his proposed regular or 

special assessment beyond its establishment of penalty criteria as set forth in Section 110(i) of 

the Act and Sections 100.3(a) and 100.5(b) of the regulations. (RO at 6). If an operator ultimately 

disagrees with the Secretary’s regular or special assessment, his remedy is to request a hearing 

before the Commission. (RO at 6). 

 2

 Commissioner Nakamura concurred with the remand decision only as to the penalty for 

the safeguard violation. Chairman Jordan dissented as to all five citations / penalties. 

3

 Hereinafter “RO” refers to the Commission’s August 26, 2016 Decision and Order. 

38 FMSHRC Page 2613
In its remand decision (Section B) the Commission reviewed the statutory and case law 

upholding its independent authority to assess penalties under the Act. (RO at 6). 

The Commission again emphasized that a Judge is bound “neither by the Secretary’s 

proposed penalty nor by the Part 100 regulations governing (the Secretary’s) proposed penalty 

process.” (RO at 7). A Judge’s discretion is not, however, unlimited: his penalty assessments 

must reflect proper considerations of § 110(i) criteria and his decision must contain findings of 

fact under each of the statutory penalty factors. (RO at 7). 

In Section C of its remand decision the Commission examined the Secretary’s burden for 

proposed penalties. The Commission noted that the Secretary’s authority to issue a special 

assessment was plenary and that the Secretary was not required to explain his reasons for his 

decisions to specially assess a violation to the commission. (RO at 7). However, the Commission 

further held that the Secretary did “bear the ‘burden’ before the Commission of providing 

evidence sufficient in the Judge’s discretionary opinion to support the proposed assessment 

under the penalty criteria.” (RO at 7). 

The Commission further held that the Secretary’s decision to specially assess the penalty 

and the rationale supporting that decision “may be relevant if the Judge appears to rely upon it, 

expressly or implicitly.” (RO at 8). While a Commission Judge has the right to impose an 

appropriate penalty based upon his own application of the penalty criteria, he still must explain 

any substantial divergence between the penalty proposed by MSHA and his own penalty 

assessment. (RO at 8). Thus, a Commission Judge should fully discuss the evidence bearing 

upon the appropriate penalty when substantially diverging from the Secretary’s proposals. (RO at 

9). 

The Commission again emphasized that for either regular or special assessments, the 

Secretary’s proposal must not be the “baseline from which the Judge’s consideration of the 

appropriate penalty must start.” (RO at 9). Regardless of the Secretary’s proposals the Judge’s 

assessment should be made independently, said assessment being based upon the penalty criteria 

and the record. (RO at 10). 

In Section D of its remand opinion, the Commission stated that certain wording in this 

Court’s decision suggested that it may have used the Secretary’s specially assessed proposed 

penalties as a benchmark for calculating his ultimate assessments. (RO at 9). 

Inter alia, the Commission found that this Court’s decision “only summarily addressed 

the history of violations criterion in a general context as to the roof and rib violations.” (RO at 

11). Additionally, the Commission found that this Court had failed to make any finding on the 

violations history relative to the safeguards violations. (RO at 11). 

The Commission specifically directed that on remand this court should do the following: 

explain whether it had relied on the Secretary’s specially assessed proposed penalties; provide an 

adequate explanation for the bases of its assessments in light of the record and its § 110(i) 

findings; in the event that this Court relied on the Secretary’s proposed assessment as a starting 

point for his assessments, it must specifically address the discrepancies noted in the record 

pertaining to the operator’s history of violations and explain how this criterion was considered in 

38 FMSHRC Page 2614
assessing the penalties; make a specific finding as to the history of violations pertaining to the 

safeguard violation, Docket No. LAKE 2011-962. (RO at 11). 

II. Review of Commissioner Nakamura’s Concurring and Dissenting Opinion 

In his concurring opinion Commissioner Nakamura agreed with the Commission that a 

Judge has broad discretion to assess a penalty de novo and is in no way bound by the Secretary’s 

proposed assessment or by the Part 100 regulations governing the penalty proposal process. (RO 

at 13) (citations omitted). 

Commissioner Nakamura observed that historically Commission Judges’ discretion in 

setting the penalty amount was circumscribed by only two legal requirements: (1) making the 

appropriate findings consistent with § 110(i) of the Mine Act; (2) explaining any substantial 

deviation from the Secretary’s penalty proposal. (RO 14). 

Commissioner Nakamura reasoned that the majority had now added an additional 

requirement, supported neither by statute or Commission precedent, demanding that the Judge be 

“attentive to the rationale supporting the decision to seek the special assessment and the facts and 

circumstances supporting that decision.” (RO 14). 

III. Review of Chairman Jordan’s Dissenting Opinion 

Chairman Jordan joined in the opinion of Commissioner Nakamura in affirming the four 

roof control violations. Chairman Jordan further opined that the safeguard violation penalty 

should also be affirmed and not remanded. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In reaching his own independent penalty assessments, this Court did not use and has not 

used the Secretary’s proposed specially assessed penalties as a baseline or starting point. 

As noted supra, the Commission’s remand in part was grounded in its concern that this 

Court had used the Secretary’s specially assessed penalty proposals as a baseline or starting point 

in reaching its own penalty assessments. The Commission voiced its apprehension thusly: 

In order to assure fairness, therefore, it is important for us to know whether the 

Judge made an independent assessment or felt constrained to making his 

assessment as an adjustment to the Secretary’s proposal. In this unique case, if the 

Judge did rely on the Secretary’s specially assessed proposed penalties as a 

benchmark, the Judge should explain whether and how he also independently 

arrived at the penalty amounts based on the statutory penalty criteria and the 

record. 

(RO 11). 

As further noted supra the Commission further directed on remand that if this Court had 

relied on the Secretary’s proposed assessments as a starting point for his assessment, it should 

specifically address the discrepancies noted in the record pertaining to the operator’s history of 

violations and explain how he considered this criterion in assessing the penalties. (RO 11). 

38 FMSHRC Page 2615
This Court regrets that some inartful phrasing in its decision may have created the 

misapprehension that it had relied upon the Secretary’s penalty proposals as a baseline or starting 

point in determining ultimate penalty amounts. 

However, this Court finds itself constrained to point out that it had directly addressed the 

Commission’s expressed remand concerns in its original September 20, 2013 underlying 

decision. 

Specifically, this Court notes its review of “Contentions of Respondent,” in which it 

states the following: 

Special assessments proposed by the Secretary prevent the Commission 

and its ALJs from assessing civil penalties without the appearance of 

arbitrariness. (Respondent’s Post-Hearing Brief, at pp. 1-6). 

The Secretary’s change to the special assessment program in 2007 

rendered the regulation vague, ambiguous, and undeserving of deference. 

(Respondent’s Post-Hearing Brief, at pp. 6-10). 

The Secretary failed to meet his burden of proving, “particularly serious 

and egregious violations” or “other aggravating circumstances” justifying 

enhanced penalties. (Respondent’s Post-Hearing Brief, pp. 10-19). 

In its brief Respondent cites the recent decision of ALJ Zielinski in 

American Coal Co., LAKE 2011-183 et al, slip op., at 51 (June 13, 2013) (ALJ 

Zielinski); (see also Respondent’s Post-Hearing Brief at p. 12). However, 

although ALJ Zielinski recognized American Coal’s concerns about the practical 

implications of the Secretary’s determinations to specially assess violations were 

well founded, he ultimately concluded that whether the Secretary proposed a 

regularly or specially assessed penalty was not relevant to the Commission’s 

determination of a penalty amount. (American Coal Co., at p. 51). 

This Court is of the same opinion. 

Regardless of the special assessment arrived at by the Secretary and the 

methodology, however flawed, used – this Court is guided in its final 

determinations by the polestar of 30 U.S.C. §820(i) penalty considerations: 

In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on 

the operator's ability to continue in business, the gravity of the 

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

attempting to achieve rapid compliance after notification of a 

violation. 

The ALJ has been further guided by Commission case law instructing how 

§110(i) criteria should be evaluated. Inter alia, the undersigned notes: the 

Commission’s holding in Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 

(Sept. 1997) that all of the statutory criteria must be considered, but not 

necessarily assigned equal weight; and the Commission’s holding in Musser 

38 FMSHRC Page 2616
Engineering, 32 FMSHRC at 1289 that, generally speaking, the magnitude of the 

gravity of the violation and the degree of operator negligence are important 

factors, especially for more serious violations for which substantial penalties may 

be imposed. 

With reference to the operator’s history of previous violations, the 

ALJ agrees with the Secretary’s argument that the imposition of significant 

penalties is consistent with case law holding repeated violations and notice of 

heightened scrutiny warrant increased penalties. (see also Secretary’s PostHearing Brief at pp. 10-11 and cited case law). 

(35 FMSHRC at 3109 – 3111.) 

This Court believed (in retrospect mistakenly) that it had sufficiently communicated its 

intention by such decisional language to conduct a de novo determination of the penalties at 

issue with no reliance on the Secretary’s penalty proposals as starting points or baselines and 

with no feelings of constraint imposed by the proposed special assessments. 

This Court does not operate in an epistemological vacuum and was of course aware of the 

regular and special assessments associated with each citation.4 This Court further recognizes the 

Respondent’s underlying concerns that, in its Solomonic search for a just and fair penalty 

amount, this Court had been tempted to merely cut the Secretary’s suggested special assessment 

in half. However, such is simply not the case. 

The ALJ also feels compelled to address the Commission’s observation that “for most 

violations,” this Court had lowered the penalty by approximately 20% from the Secretary’s 

special proposal. (RO at 10). While this Court’s penalty amounts were roughly 20% lower than 

the Secretary’s proposed penalties, this Court did not intentionally utilize any uniform acrossthe-board reduction formula in arriving at its individual penalty conclusions. Each penalty 

amount discussed within has been arrived at individually—after due consideration of § 110(i) 

criteria and a traditional negligence analysis pursuant to Brody Mining, LLC, 37 FMSHRC 1687, 

1701 (AUG. 2015). 

To the extent that there were any substantial deviations in this Court’s penalty amounts 

that would require a Sellersburg explanation, this Court notes that, on the one hand, it frequently 

disagreed with the Secretary’s negligence assessments.5 On the other hand this Court gave great 

weight to the facts that the operator was large in size and able to continue in business despite the 

penalties imposed. Contrary to Am Coal’s speculations, this Court imposed penalties that it felt 

were large enough to serve as an effective enforcement tool and discourage further violations. 

(see also Black Beauty, 34 FMSHRC at 1862 for similar considerations in considering settlement 

approval). 

4

 See inter alia Am Coal’s chart of regular assessments v. proposed special assessments 

at page 5 of its petition for discretionary review. 

5

 See Sellersburg Stone Co., 5 FMSHRC 287, 298 (Mar. 1983), aff’d 736 F .2d 1147 (7th

Cir. 1984). 

38 FMSHRC Page 2617
Therefore, pursuant to the Commission’s remand directive, this Court emphasizes and 

clarifies that it did not and has not relied upon the Secretary’s special assessments as a baseline 

or starting point. Accordingly, there is no need to specifically address the discrepancies noted in 

the record pertaining to the operator’s history of violations and how such criterion was 

considered in assessing the penalties. (See also Commission remand directives at RO 11). 

This Court, however, does find that as a general matter, regardless of possible 

inconsistencies in the record, this mine operator inarguably had a significant history of 

violations. This Court specifically rejects Am Coal’s apparent arguments that as its violations 

history was “not extraordinary or extreme,” lesser penalties would be warranted. (see Am Coal’s 

petition for review at p. 30). 

The Mine Act is founded upon what this Court terms, “the Gibraltar” principle, that 

miners are valued as the most precious resource—not the shifting sands of mine operators’ 

reported assets. In weighing the penalties to be paid this court fully took into account that 

miners’ lives had been put at risk multiple times in the past by this operator. 

In reference to the Commission’s directive to “provide an adequate explanation for the 

bases of his (this Court’s) assessments, in light of the record evidence and his section 110(i) 

findings,” this Court shall discuss such seriatim. 

PENALTY ASSESSMENT FOR CITATION NO. 8428508 

(DOCKET NO. LAKE 2011-701)

The penalty imposed at this citation was $20,000. In its remand order the Commission 

noted that this Court did not make an explicit finding in the record of the size of the subject 

mine. (RO at 9). This Court has, in fact, considered the appropriateness of the penalty to the size 

of the operator pursuant to § 103.3(b). Taking into account, inter alia, that the subject mine 

tonnage exceeded 6,000,000 tons and the controlling tonnage exceeded 29,000,000 tons, this 

Court, in reviewing the tables in § 100.3, finds this to be a large mine. (See also Exhibit A). The 

size of Am Coal’s operation would call for more than a minimal fine as to all the citations at 

issue. 

This specific citation, as three of the succeeding violations discussed herein, involved § 

104(a) S&S violations of 30 C.F.R. 75.202(a).6

 

Here, Inspector Phillip Stanley found 6 rod bolts that were not supporting the immediate 

mine roof. (This Court’s review of the factual record as contained at 35 FMSHRC at 3105-3107 

is hereby incorporated without full recitation thereof herein). 

Given, inter alia, its findings that the injury which reasonably could be expected to result 

from a violation of the within standard in the cited area would be lost workdays or restricted duty 

and given, inter alia, that the inactive character of the cited area would lessen, in this Court’s 

 6

 30 C.F.R. § 75.202(a) provides: The roof, face and ribs of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock bursts. 

38 FMSHRC Page 2618
opinion, the negligence level of the violative conduct, this Court was persuaded that the penalty 

should be reduced.7

 

PENALTY ASSESSMENT FOR CITATION NO. 8432118

(DOCKET NO. LAKE 2012-58) 

This citation also involved a S&S violation of 30 C.F.R. § 75.202(a). This Court imposed 

and again imposes a penalty of $7,200.8

At hearing, Inspector Law testified that he had observed inadequately supported ribs in 

the 1st East Tailgate. (Tr. I, 193). The standard § 75.202(a) had been cited 97 times in two years 

at mine 1102752 (97 to the operator, zero to a contractor). 

This Court found that Law’s testimony regarding the gravity of the violation was 

credible. (See also Tr. I, 205; 38 FMSHRC at 3114). However this Court further concluded that 

a rib collapse causing a crushing injury was less likely than that suggested by Law. Given inter 

alia the inactive character of the cited area and other mitigating factors, this Court further 

reduced the negligence level from moderate to low. (35 FMSHRC at 3114). 

This Court finds that the $7,200 penalty which it imposed was appropriate given the large 

size of the business of the operator and that such penalty would not affect the operator’s ability 

to continue in business. (See also § 100.3(a)(1)(i) and § 100.3(a)(1)(vi)). The operator’s 

significant history of past violations further justifies more than a de minimis penalty. Further 

considering the low negligence of the operator and its demonstrated good faith in abating the 

violations, the ALJ again concludes that the $7,200 penalty imposed is appropriate.9

 

PENALTY ASSESSMENT FOR CITATION NO. 8432126

(DOCKET NO. LAKE 2012-58) 

This citation again centered on a S&S violation of 30 C.F.R. §75.202(a). This Court had 

imposed a penalty of $6,100. 

At hearing, Inspector Law had testified that he had discovered four damaged roof bolts in 

the mine’s main north travel way, creating 3 different areas of unsupported roof. (Tr. II, 281; S14). 

 7

 All of the Commissioners in their majority, concurring, and dissenting opinions agreed 

that this Court’s explicit findings as to (reduced) negligence or gravity associated with the 

violations at issue in part explained the ultimate penalty amounts arrived at. (See inter alia RO at 

9, 16, 18). 

8

 This Court again incorporates its review of Citation No. 8432118 as set forth in its 

decision at 35 FMSHRC at 3112-3115 as though fully recited herein without recitation thereof. 

9

 The difference in negligence levels arrived at by the Secretary and this Court essentially 

constitutes the reason for this Court’s divergence from Secretary’s proposed penalty. 

38 FMSHRC Page 2619
This Court previously held that the $6,100 penalty was appropriate considering inter alia

this § 110(i) criteria. The operator had a significant history of previous violations.10 (See S-13). 

The mine operator had a large sized mining operation and would be able to stay in 

business despite the penalty imposed. The mine operator had demonstrated good faith in 

attempting to achieve rapid compliance after notifications of the violation. 

This Court’s divergence in penalty amount was again essentially based upon a finding of 

low negligence rather than moderate negligence.11

PENALTY ASSESSMENT FOR CITATION NO. 8432129

(DOCKET NO. LAKE 2012-58) 

This citation was also one of the four violations of 30 C.F.R. § 75.202(a) found by 

MSHA inspectors. 

At hearing, Inspector Law testified he had issued the within citation for inadequate roof 

bolts. (Tr. II, 361).12

This Court imposed a penalty of $6,100 after careful consideration of the above § 110(i) 

criteria previously discussed as applicable to the foregoing citations. Given considerable 

mitigating circumstances—including that the cited condition might not have been observable 

when one was in the crosscut—this Court finds that the mine operator’s negligence was low 

rather than moderate in nature. Any deviation in penalty amounts was principally owing to the 

reduced negligence finding. 

PENALTY ASSESSMENT FOR CITATION NO. 8432052

(DOCKET NO. LAKE 2011-962) 

Citation No. 8432052 involved a violation of the mandatory safety standard contained in 

30 C.F.R. § 75.1403.13

 10 Notwithstanding Am Coal’s arguments to the contrary, this Court finds that Am Coal’s 

history of previous violations—regardless of alleged inconsistencies in the Secretary’s 

assessments—was significant in nature. 

11 This Court again incorporates its analysis as contained at 35 FMSHRC at 3115-3119 as 

though fully recited herein. 

12 This Court incorporates its analysis of said citation/violation as contained at 35 

FMSHRC 3120-3122 as though fully recited herein. 

13 Both Section 314(b) of the Mine Act and 30 C.F.R. § 75.1403 provide: “Other 

safeguards adequate, in the judgment of an authorized representative of the Secretary, to 

minimize hazards with respect to transportation of men and materials shall be provided.” 

38 FMSHRC Page 2620
In its remand order the three Commissioner majority, also with Commissioner Nakamura 

concurring, directed that this Court make a specific finding as to the history of violation criterion 

pertaining to the safeguard violation, Citation No. 8432052. (RO at 11, 15). 

In his hearing testimony Inspector Edward Law testified that the original safeguard, 

Citation No. 3033358, had been issued on January 13, 1988, arising out of an incident in which a 

ram car struck a miner standing on the back side of a curtain. (Tr. II, 393-394; S-10). 

Law estimated that he had cited the instant safeguard less than 5 times in the past. (Tr. II, 

416). The 55 citations noted in Citation No. 8432052, issued on January 4, 2011, concerned a 

multitude of safeguards associated § 75.1403 and not just Citation No. 3033358.14 (Tr. II, 417; S9). In recommending the within citation for special assessment, Law considered the number of 

previous § 75.1403 violations, that the specific violation at issue involved one of the ten “rules to 

live by,” and that it was S&S. (Tr. II, 433). 

In the Commission’s remand order it was noted that the operator had a history of 19 

violations of the same standard. (RO at 9, FN 8). Pursuant to the remand order this Court 

specifically finds that the mine operator had a history of 19 past violations within the preceding 

15 month period prior to the present violation. (R-9)15

After reevaluating the entire record, including this Court’s specific finding regarding the 

mine operator’s history of past violations, this Court again determines that the sum of $3,800 is 

an appropriate penalty for Am Coal’s violative conduct. 

In reaching this penalty amount, this Court has not used the Secretary’s proposed special 

assessment of $4,800 as a baseline or starting point. However, this Court is further mindful that it 

must explain any “substantial divergence” between the Secretary’s proposed penalty ($4,800) 

and its own assessment ($3,800). Sellersburg Stone Co., 5 FMSHRC 287, 298 (Mar. 1983), aff’d

736 F .2d 1147 (7th Cir. 1984). 

This Court initially observes that the relatively small $1,000 differential arguably raises 

some question as to whether a “substantial divergence” even exists—as Chairman Jordan, in her 

dissenting opinion, pointedly commented: “I do not find the penalty reduction substantial enough 

to vacate the Judge’s assessment on this basis.” (RO at 18, FN 1) 

 14 See also R-36 for various other safeguards cited in connection with § 75.1403 and 

Respondent’s cross examination regarding such at Tr. II, 417-418. 

15 § 100.3(c) provides that: 

An operator’s history of previous violations is based on both the total 

number of violations and the number of repeat violations of the same citable 

provision of a standard in a preceding 15-month period. Only assessed violations 

that have been paid or finally adjudicated, or have become final orders of the 

Commission will be included in determining an operator’s history. The repeat 

aspect of the history criterion in paragraph (c)(2) of this section applies only after 

an operator has received 10 violations or an independent contractor operator has 

received 6 violations. 

38 FMSHRC Page 2621
Assuming, however, that the result constituted a substantial divergence, the ALJ fully 

considered the six statutory factors contained in 30 U.S.C § 820(i)16 in reaching the within 

penalty assessment, including the operator’s above discussed history of previous violations. The 

ALJ has not given equal weight to all of the above criteria and finds that, under the total case 

circumstances, more weight should be accorded to the factors of operator’s negligence and 

gravity of the violations. As noted in his original decision, the ALJ found that the illumination of 

the cited area and miners’ general awareness of the transformer’s location lessened the degree of 

negligence and gravity otherwise applicable. (See also 35 FMSHRC 3105). The $3,800 penalty 

amount was appropriate given the size of the operator’s business and given that the amount of 

the penalty would not affect the operator’s ability to stay in business. Further, the operator had 

demonstrated good faith in abating the violations, lessening the amount of penalty that would 

have been otherwise warranted. (See also joint stipulation no. 10, Joint Exhibit 1, 35 FMSHRC 

3079). 

After conducting a de novo assessment based upon his own independent review of the 

record the ALJ finds that a substantial divergence from the Secretary’s proposed penalty is 

justified and that, given the total case circumstances without reliance upon the Secretary’s 

proposed penalty as a starting point, a penalty of $3,800 is appropriate. 

ORDER 

This Court makes the following penalty assessments without having used the Secretary’s 

proposed specially assessed penalties as a baseline or starting point. 

At Citation No. 8432052 (Docket No. LAKE 2011-962) Am Coal is assessed a penalty of 

$3,800. 

At Citation No. 8432118 (Docket No. LAKE 2012-58) Am Coal is assessed a penalty of 

$7,200. 

At Citation No. 8432126 (Docket No. LAKE 2012-58) Am Coal is assessed a penalty of 

$6,100. 

At Citation No. 8432129 (Docket No. LAKE 2012-58) Am Coal is assessed a penalty of 

$6,100. 

 16 30 U.S.C. § 820(i): 

The Commission shall have authority to assess all civil penalties provided 

in this chapter. In assessing civil monetary penalties, the Commission shall 

consider the operator’s history of previous violations, the size of the business of 

the operator charged, whether the operator was negligent, the effect on the 

operator’s ability to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. In proposing civil penalties under this 

chapter, the Secretary may rely upon a summary review of the information 

available to him and shall not be required to make findings of fact concerning the 

above factors. the appropriateness of such penalty to 

38 FMSHRC Page 2622
At Citation No. 8428508 (Docket No. LAKE 2011-701) Am Coal is assessed a penalty of 

$20,000. 

Am Coal is ORDERED to pay civil penalties in the total amount of $43,200 within 30 

days of the date of this decision.17 

/s/ John Kent Lewis 

John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Courtney Przybylski, Esq., & Ryan L. Pardue, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204 

Jason W. Hardin, Esq., & Mark Kittrell, Esq., Fabian VanCott, 215 South State Street, Suite 

1200, Salt Lake City, UT 84111 

 17 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

38 FMSHRC Page 2623
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

October 18, 2016 

DECISION 

Appearances: Brian P. Krier, Esq., Office of the Solicitor, for the United States Department of 

Labor 

Rebecca J. Oblak, Esq., Bowles Rice LLP, for the Respondent 

Before: Judge Moran 

 

Introduction: 

These two dockets involve three 104(d)(2) Orders, issued by MSHA Inspector Ronald 

Postalwait at Consolidation Coal’s Loveridge No. 22 Mine, during September and October, 

2014. Each order was specially assessed. Involved in WEVA 2015-651 is Order No. 8061842, 

issued September 5, 2014, alleging a 30 C.F.R. §75.400 accumulations violation at a scoop 

haulage entry. The Order was specially assessed at $23,800. A regular assessment would have 

resulted in a $4,810 penalty. 

The other docket, WEVA 2015-762, involves two alleged violations: another Section 

75.400 accumulations violation, (Order No. 8061991) and a Section 75.360 inadequate preshift 

examination violation, (Order No. 8061992), which was associated with the accumulations 

violation. MSHA specially assessed these two orders as well, with the accumulations violation 

assessed at $30,200 as compared to the $6,115 a regular proposed penalty assessment would 

have yielded. The preshift violation was specially assessed at $15,900 while a regular assessment 

would have been $4,000. In sum, MSHA’s special assessments for these three alleged violations 

totaled $69,000. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONSOLIDATION COAL COMPANY, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2015-651 

A.C. No. 46-01433-376507 

Docket No. WEVA 2015-762 

A.C. No. 46-01466-381152 

Mine: Loveridge #22 

38 FMSHRC Page 2624
For the reasons which follow, the Court finds that all three violations were established 

and, following the Commission’s recent decision in American Coal, imposes civil penalties in 

the amount of $9,620.00 for the violation set forth in Order No. 8061842. Sec’y of Labor v. The 

Am. Coal Co., No. LAKE 2011-701 et al., 2016 WL 5868551 (FMSHRC) (Aug. 26, 2016). For 

Order No. 8061991, another accumulations violation, again based upon the credible record 

evidence and the Court’s independent consideration of the statutory criteria, the Court imposes a 

civil penalty in the amount of $18,345. For Order No. 8061992, which was issued for the 

inadequate preshift examination, following the same approach, the Court imposes the same 

special assessment figure of $15,900, although it notes that a larger amount could have been 

justified. 

Findings of Fact 

Inspector Ronald Postalwait has been an MSHA inspector for 14 years. His career in 

mining, all of it with coal, began in 1975 at age 18. Tr. 62. Regarding the mine in this litigation, 

Consolidation Coal’s Loveridge No. 22, an underground coal mine which utilizes both longwall 

and continuous mining, Postalwait believed that during September and October 2014, in terms of 

working sections, the mine had four continuous miners and one longwall operating, employing 

about 500 miners. Tr. 70. Shifts at the mine are 8:00 a.m. to 4:00 p.m. for the day shift, 4:00 p.m. 

to midnight for the afternoon shift and then a midnight shift from 12:00 a.m. until 8:00 a.m. Tr. 

73. The mine had MMUs (mechanized mining units). An MMU is one section. The mine had 

two separate panels, with a section on each one. They also had the mains, where there are two 

MMUs, again with two separate sections running side by side and the longwall as an MMU. At 

the time in issue, the mine was on 103(i) five day spot inspections for methane liberation, which 

is the most frequent level of inspections. Tr. 69-71. 

Docket No. WEVA 2015-651; Order No. 8061842 

The Secretary’s Evidence 

On September 4, 2014, Postalwait was at the Loveridge mine for an E01 inspection. Tr. 

73-74. The mine was under a (d) order at that time.1 On that day he planned to inspect the 

mine’s 23D panel. Larry Broadwater, with the company’s safety department, and Travis 

Anderson, the UMWA miners’ representative, joined him. Coal mine inspector trainee Jeff 

Burns also accompanied Postalwait. The 23D was a continuous miner section and it had 3 

entries, with the No. 2 entry serving as the intake air course, the track entry and also as the 

                                                             1

 Inspector Postalwait identified Order No. 8055581 as a violation which he had earlier 

issued on April 9, 2014, citing 75.360(a)(1). Gov. Ex. 3A. That order was issued for not 

performing an adequate preshift inspection. The inspector described it as a “perfunctory” preshift 

exam. Tr. 77. He marked the violation as S&S, high negligence, and an unwarrantable failure. 

That Order has since become a final order of the Commission. Gov. Ex. 3B. The information was 

presented at the hearing in order to establish that the orders at issue in this litigation were 

properly designated as 104(d)(2) orders. During the time after that violation and continuing 

through the inspector’s September 2014 inspection, the mine did not have an intervening clean 

inspection. Tr. 78. These issues were not challenged by the Respondent. 

38 FMSHRC Page 2625
primary escapeway.2

 The No. 1 was the return course and the No. 3 entry had the belt. Tr. 83-84. 

The blocks between the No. 2 and No. 3 entry are 137.5 feet, but the block between the No. 1 

and No. 2 was 275 feet, because there was a block in the middle between the belt and the track. 

In other words, under that arrangement there was a long block followed by a short block. Tr. 85-

86. The entries, from rib to rib, were 16 feet wide and the mine height around 7 feet. Tr. 86. On 

September 4, 2014, the last open crosscut3 was at the 52 block, between the No. 1 and No. 2 

entry. Miners reached the face by walking up the No. 2 entry and in so doing they walk through 

the 46 block intersection. Tr. 87. This is past the 1 to 2 and 2 to 3 crosscuts. Tr. 87-88. In that 

area, the inspector took various readings for methane, air velocity and oxygen at the faces. Tr. 

88-89. 

 As the inspector was walking up the entry towards the No. 46 crosscut, he saw an 

accumulation on the floor in the intersection. It extended into the 1 to 2 and the 2 to 3 crosscuts. 

Tr. 90. Seeing this condition, Inspector Postalwait issued Order No. 8061842, alleging a 

violation of 30 C.F.R. § 75.400. Gov. Ex. 4, Tr. 90. The cited standard provides: 

 Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein. 

30 C.F.R. § 75.400. 

The inspector found the accumulation to consist of loose, lumpy coal, fine coal and coal 

dust. Tr. 91-93. The condition he observed was, 

through the entire area. It was along the rib on the 2-3 crosscut on the inby rib. It 

was a pile of coal that was pushed up in the 1 to 2 crosscut. And it was -- it 

measured 27 inches tall. The rest of it where I measured it -- I made different 

measurements over the area, to find out what the average thickness of the 

combustible materials was. And the least measurement I could find was 5 inches. 

And on the floor, through the powdery stuff, it was 10 inches. But the piles was -- 

was higher. And the main pile, was the one big one, what was along the rib, was 

just a little bit higher than what was out in the roadway. 

Tr. 94. 

                                                             2

 As noted, the No. 2 entry is the primary escapeway. The primary is in the intake air 

split, which leads directly to the surface. The cited accumulation in the primary factored into the 

inspector’s gravity determination, because both the primary and secondary escapeways would be 

impacted if there was a fire. As the No. 1 entry is a return, if there is smoke it travels back down 

and out of the mine. Therefore smoke would be in the return air split. Tr. 122. 

3

 During the testimony, crosscuts were sometimes referred to as “breaks.” 

38 FMSHRC Page 2626
In using the term “coal dust” in his Order, he stated that referred to “real fine coal dust” 

which he observed over, 

the whole mine floor, almost the entire floor, where the scoop tires -- where they 

was running the scoop back and forth. It was grounded up. And it's really 

powdery, fluffy dry. Just walking through it, the dust would spin up from your 

feet, just as you walked through. 

Tr. 95. 

The inspector also described the presence of “fine coal” in the Order, by which he meant 

of a size no more than 1/8 to 1/4 of an inch, making it smaller than “lump coal.” He found most 

of such fine coal “down underneath the fluffy -- the fluffy, powdery, dry stuff was what you seen 

on top. Underneath of that you have some fine coal. And then in the piles, we had the fine coal 

and lump coal.” Id.

Exhibit 5B, reflecting page 29 from his notes, is Postalwait’s drawing of what he 

observed at the 46 block that day. Tr. 96. Augmenting the drawing on that page, further 

explaining the depiction, the measurements he took of the condition were listed and recorded as 

five inches to 10 inches deep and 14 feet wide by 120 feet in length, with a pile up to 27 inches 

deep, shown on the left side of the drawing, in the No. 1 to 2 crosscut.4

 Postalwait stated that he 

took at least 10 measurements of the accumulation. Tr. 210. The 5 to 10 inches of accumulations 

he found were on top of the coal bottom. Tr. 211. 

The Court would note that the inspector’s testimony about the measurements he took was 

detailed and extensive. The Inspector stated that he showed the dry characteristics of the coal to 

Broadwater and Burns. Tr. 103. When Broadwater and Burns agreed the coal was dry, the 

inspector responded to them that it was “powder dry.” Tr. 103. Upon cross-examination, the 

inspector did not waver on the question of whether the road was powder dry. Tr. 144. The 

inspector also pointed out to those individuals who accompanied him how the coal was being 

suspended in the air, simply by walking through it. Tr. 103. Being dry, such coal is easier to 

ignite. Tr. 104. Postalwait stated that, based on his observations, it did not appear that, at the 

intersection of the 46 block, the two crosscuts had been watered down recently. Tr. 105. While 

many factors impact the determination of when an area has last been watered down, the inspector 

stated that an area will not become dry in one shift. That area was required to be watered down 

because the scoop runs there, as it is a scoop supply haul road. Tr. 105. Any scoop road has to be 

watered down so that it remains damp. Here, the roadway wasn’t damp; it was dry. Tr. 106. 

 As the inspector explained, the condition, the dry supply road “was generated from the 

scoop hauling supplies, where it was turned around.” Tr. 107. As the section advances, supplies 

are continually needed and the scoop brings those supplies. The inspector agreed that “the scoops 

on that section would continue to travel to and from the 46 block to supply the face,” as that is 

                                                             4

 The horizontal part of the drawing is the 46 block, the vertical part represents the No. 2 

entry, the left side is the No. 1 to 2 crosscut and the right side represents the No. 2 to 3 crosscut. 

Tr. 97. 

38 FMSHRC Page 2627
how the section get its supplies. “The supplies are hauled in on flatcars on the rail. And they haul 

them from the end of the track up to the section with the scoops.” Tr. 108. The 5 to 10 inch 

accumulation meant that it would take a lot of scoop trips to generate the level of dust he found. 

Tr. 109. 

 Speaking generally to the subject of a “coal bottom,” that is, a practice where coal is left 

on the mine floor, which is referred to as the “bottom,” the inspector explained that such an 

arrangement is used, 

if the main bottom is soft and you're sinking in and getting hung up, then the mine 

will leave some coal at the bottom because it makes the bottom stronger and 

therefore it will support the heavy equipment, so that the equipment can run on 

that. If they don't do that, some bottoms are so soft that one can’t even mine . . .” 

Tr. 111-12. 

Loveridge was mining using a coal bottom in the cited section. Tr. 112. The mine had no 

choice but to employ this technique because the bottom was so soft they couldn’t mine without a 

coal bottom. Postalwait’s coal work experience included using equipment in coal bottoms. Tr. 

112. In fact, his prior employment included being a foreman in a mine utilizing a coal bottom. 

Maintaining such a bottom requires a lot of work; one has to keep it damp or the bottom will 

grind up from the equipment traveling over it. Tr. 113. The arrangement also requires “more 

emphasis on clean up” and more rock dusting. Tr. 114. 

 Based on the situation he encountered, the inspector concluded that the coal bottom at the 

46 block had not been properly maintained because “several inches of combustible material [had 

been] allowed to accumulate. And if -- if they had kept that [bottom] maintained damp, it 

wouldn't have been an issue to start with, but it would be compressed down. What dust would 

have been there would have compressed down to very little.” Tr. 114. Another maintenance 

requirement when a mine uses a coal bottom is to keep it scooped up, if the bottom breaks while 

running equipment on it. Also, one must apply a good layer of rock dust after it gets cleaned. Tr. 

115. 

 The inspector identified the hazard pertaining to Order No. 8061842 as fire and smoke. 

Tr. 118. While he did not observe any ignition sources at the time when he issued the order, he 

explained that when the scoop is running and the area is dry, that creates an ignition source in the 

area. Tr. 118. Scoop batteries can catch on fire, as can battery plugs, and there are times when a 

scoop, by simply running, can arc and catch fire. Tr. 119. The inspector marked the gravity as 

“unlikely” only because the scoop was not running at the time he was there, but under normal 

mining operations the scoop would resume running, creating the ignition source. Tr. 120. 

Fourteen miners were listed as the number of persons affected. Id. 

Further explaining the basis for the hazard those miners would face, he stated, 

Because this is the intake, [it is] the main intake for that section. And if you get 

smoke in that entry right there, it's going directly to the face. And not only is it 

38 FMSHRC Page 2628
going to the face, but you'll have some air that will go down the belt. So that air 

will have smoke in it. And then your return entry, which would be No. 1 entry, it 

would have smoke in it. So that everything would have smoke in it, except No. 2 

entry outby, in that condition. 

Tr. 121. 

He added that the smoke would travel from the 46 block very quickly. The expected 

injuries would be smoke inhalation or burns. The inspector listed lost workdays or restricted duty 

only because the miners had self-contained self-rescuers (“SCSRs”), otherwise he would have 

listed the expected injuries as more severe. Tr. 122. 

 The inspector listed the negligence as “high” because he had spoken to the mine about 

violations under the 75.400 standard before this instance, and therefore they were on notice of 

this issue, and also because he found no mitigating circumstances. Tr. 123. When the inspector 

told the section foreman, Glenn Lee, that he was going to issue a citation, Lee protested and told 

him he had to realize they were running on coal bottom, to which Postalwait replied that the 

bottom still has to be maintained and one can’t permit accumulations to develop. Tr. 123, 193. 

As noted, the inspector issued a 104(d) order, finding that it was an unwarrantable failure. 

That finding was based upon two factors: he had previously put the mine on notice about this and 

the condition he found was obvious.5

 Tr. 125. The inspector believed that the mine displayed 

indifference to the problem and a serious lack of reasonable care as well. Tr. 204. The standard 

invoked, Section 75.400, had been cited 267 times in the past two years, all to the operator.6 Tr. 

126. 

Referring to his conclusion that the condition had existed for more than one shift, the 

inspector stated this was based upon: 

The amount of the fine dust that was -- it was powdery, fluffy dry, 5 to 10 inches 

deep. And that takes time, a lot of trips and time for it to get that dry. Because if 

you start out where it's compressed, and then you're running over it, it dries out a 

                                                             5

 Supporting his view that the condition was obvious, Postalwait stated, “Before I even 

got up to the crosscut, as I was walking up the walkway, you could see it in -- in the intersection, 

where they'd been running through it. And then as I walked up to the intersection and looked, 

you could see it both ways. I mean it was obvious. And it should have been obvious to anybody, 

but especially an examiner, a foreman. It should have been obvious to them.” Tr. 128. 

6

 Respondent’s counsel made a brief challenge on this issue, asserting that a majority of 

the previous 75.400 violations were on the belt as opposed to the section. The inspector did not 

know how many were on the section versus the belt. Tr. 206. The Court notes that, wherever the 

location, it still involved the same standard and that it remains a large number of citations for that 

standard. 

38 FMSHRC Page 2629
little more and a little more each time. So it takes an extended period of time for it 

to dry out and get to that amount of it. 

Tr. 126-27. 

The inspector considered the area involved to be extensive, adding, 

Because it was over that large of an area, there was a lot of powdery, fine dust in there. 

And whenever they cleaned it up, it took seven miners four hours, and it took nine scoop 

loads, full scoop loads, to clean it up. And that -- that's excessive, extensive.”7

Tr. 127. 

The inspector also concluded that the condition presented a high degree of danger 

because “miners were working inby it, then in the event you have a fire there, all that smoke is 

then going to go directly to the face. So that's a high degree of danger to the miners.” Tr. 129. 

Further, all three entries would be affected, but the No. 2 entry would be affected from the point 

of accumulation in because “the air that ventilates of the belt, it was up to the tailpiece, and some 

air goes back down the belt. The rest of it goes across the faces, back down to the return.” Id. 

Upon cross-examination it was suggested that the accumulation included rock and dirt, 

but Postalwait responded that, while there might have been some of such material, it was 

basically ground up coal. Tr. 138. Although he did not take samples of the material, the Court 

would comment that there was no reasonable need to do that, as the inspector’s long mining 

experience enabled him to determine the nature of the material in a coal mine. 

7

 Each bucket from the scoop represented a significant amount of material. The inspector 

estimated the bucket size to have a width of 9 to 10 feet, a depth of 5 to 6 feet, and an 18 inch 

height. Tr. 132. The Respondent asked about the size of the scoops at the mine and the inspector 

acknowledged that a 620 scoop is “pretty good size.” Tr. 148. The point behind that question was 

the suggestion that the accumulation could have developed in a very short time, challenging the 

inspector’s view about the time it would take for the extent of such conditions to develop. The 

Court, upon considering the entire record testimony, does not adopt that claim. 

38 FMSHRC Page 2630
Referring again to Gov. Ex. 5B,8

 the inspector’s drawing of the accumulation and its 

location, Postalwait stated that the accumulation is reflected on the dotted lines he drew on that 

exhibit. Tr. 140. Dealing with nearby areas, the inspector agreed that where the track haulage is 

depicted, that area was cleaned and dusted. Tr. 141. He stated that after one passes through the 

crosscut to just inby it, the area started to become clean. Tr. 142. However, that nearby areas did 

not have an accumulation issue does not diminish the accuracy of the area cited or its extent. 

The same observation applies to questions about the source of the accumulations at the 

end of No. 1 to the No. 2 crosscut where the inspector observed an accumulation of 27 inches. 

While Counsel for the Respondent suggested that could have occurred from the scoop hauling 

supplies, the inspector could only respond that something pushed the material up there or that 

perhaps the scoop dumped it out of its bucket. However, the Court notes that competing claims 

about the source for the accumulation should not distract from its presence or extent. Tr. 143. 

 On the issue of the duty to water crosscuts, a matter which was not genuinely in dispute, 

the inspector stated that one must water that if the scoop is running through such areas. He added 

that the crosscut is part of a scoop supply haulage road because it’s used to turn around. Rock 

dusting is not an alternative to watering. Tr. 143. When the questioning turned to whether he saw 

scoops using bolt tubs,9

 the inspector stated that he did not observe any scoops running when he 

issued the violation. Tr. 145. 

 With the Respondent challenging the inspector’s claim that he had previously put the 

mine on notice about Section 75.400 violations, the inspector stated that he had informed the 

mine’s Jeremy Devine and Don Jones about such violations. Tr. 150. While the crossexamination belabored this point, it was clear that the inspector supported his statement about 

prior notice to management people at the mine. Tr. 152. Though he couldn’t remember the 

individual’s name, Postalwait stated that it was the next section foreman coming on shift who 

                                                             8

 Joint Exhibit 4, is an annotated version of the schematic drawn by the inspector. 

Accordingly, besides its additional markings, red ink, and enlargement, it is essentially the same 

drawing as Gov. Ex. 5A at page 29 and Gov. Ex. 5B. The inspector agreed that the drawing 

looks like a cross and that the face would be in the direction of the top of page for that exhibit. 

An arrow was marked by Respondent’s counsel, pointing to the top of the page. Track haulage is 

marked at the bottom of the page and the inspector added that is where the track is located. Tr. 

213. The left side of the paper depicts where the No 1 & 2 entry is located. Tr. 214. The No. 2 to 

No. 3 entry is on the right side of the paper. Respondent’s counsel added markings in red to 

signify this information. The inspector noted that his drawing shows ventilation controls; the 

stopping and the crosscut. The stopping is depicted in the middle of the 2 to 3 crosscut; also a 

stopping is in the 1 to 2 crosscut, which is the No. 46 block crosscut. Tr. 215. As described by 

Respondent’s counsel, the accumulations are reflected in the drawing as follows: “the little dots 

that go around the No. 1 to No. 2, go all the way across 120 to No. 2 and No. 3 entry.” Tr. 216. 

In the Court’s view, Jt. Ex. 4 provides little additional information. 

9

 A bolt tub is a container which holds bolts, plates, and glue to be hauled up to the 

section. Tr. 145. 

38 FMSHRC Page 2631
informed him as to the number of scoops loads it took to remove the accumulation. Tr. 154-55. 

Although the Respondent suggested that there was no such exchange between a supervisor and 

the inspector, Postalwait did not retreat from his assertion, stating that he did speak with the 

afternoon shift foreman, and also advised that supervisor that he wanted to have a safety talk 

with all the miners. Tr. 156. The Court finds Postalwait’s testimony on these issues credible. 

 Upon additional cross-examination, the inspector agreed that the accumulation could 

have been from the scoop dropping supplies. Counsel also inquired about the inspector’s 

procedure for taking measurements of an accumulation. The inspector explained his process with 

detail: 

I walk through the whole area and take it in the whole area, to see what the whole 

area is, to try to determine the measurements and where it appears to be the least 

amount. Because my walking stick, like I said, it's got measurements on it, plus I 

hold my thumb at the top of the material, and pull it up and actually measure. And 

the ones I actually measure, that's the ones I count. And I was just going through, 

and if it was between 5 and 10 inches, then I didn't even measure, because I could 

see on my stick that it was in between that. I measure areas to get the least and the 

areas to get the most. 

Tr. 167. 

Although he didn’t actually witness a scoop running through the cited accumulation, the 

inspector drew upon his experience to conclude that was what happened, “The tires from the 

scoop, as it passes through there, grinds it up.” Tr. 169. 

 The inspector elaborated about the need for the mine to be watching for the 75.400 

violations: “the examiners [are] their eyes. So they need to put something in place to prevent this 

from occurring. They need to talk to their examiners. If it takes cleaning up more, whatever it 

takes to put in place to prevent this from occurring to reduce their exposure.” Tr. 170. 

Postalwait reaffirmed the basis for his conclusion that the condition had existed for more 

than one shift, as follows, 

Based on my experience. And that's what I tried to explain earlier. From the time 

the scoop road is watered down and it starts drying out, it takes a lot of trips for -- 

because it's going to be compressed. And then once -- once it dries, it takes a lot 

of trips to accumulate that much powdery dust. It ain't going to take just one trip 

or ten trips. It takes a lot of trips for it to do that. 

Tr. 172.10 

                                                             10 Respondent contended that another MSHA inspector, Paul Walters, was on the same 

exact section the day before and didn't issue any violations, with the same condition. Postalwait 

had no idea about that assertion and has never spoken with Walters about the issue. Tr. 171. 

Walters was not a witness in the proceeding. 

38 FMSHRC Page 2632
 The inspector did not look at the production report for the day shift on this section but he 

did look at the preshift report. Tr. 174. Although he didn’t see each scoop of material that was 

removed, he did observe some of them and those scoops were full. Tr. 176. 

Explaining how he marked it non-S&S, but was still concerned about fire or smoke going 

to the face, he stated: “[b]ecause I did not see an ignition source in there at the time that I was 

there. Which I do believe the scoop's ignition source -- and it was in the area, but I didn't see it. 

So I was being conservative in marking non S and S, based on that.” Tr. 176 (emphasis added). 

 In terms of justifying his high negligence determination, Postalwait related that he told 

Broadwater and Anderson what he observed about the scoop and the area and asserted that they 

agreed with his conclusions. Tr. 178. Thus, according to the inspector, Broadwater agreed that 

the scoop had generated the conditions. Tr. 178. The inspector defined “high negligence” as 

where an operator knew or should have known and there are no mitigating circumstances. Tr. 

178-79. He supported his conclusion on the basis that management had walked through the area. 

The area had been preshifted and he concluded that the conditions had not just occurred. The 

preshift would have been done between 5:00 and 8:00 a.m. Tr. 179. The inspector did look at the 

preshift exam but nothing stood out. Tr. 182. The aim of Respondent’s questions was to assert 

that the condition must have arisen more recently than inspector stated, as he made no note of 

anything. However, the court would note that it could equally mean that the preshift was 

inadequate or failed to note that which should have been noted. The Order was issued at the end 

of the day shift that day.11 

 Respondent’s Counsel also suggested it was possible that during the time from 8:00 a.m. 

until 5:00 p.m. that day, the scoop’s usage could’ve created the conditions Postalwait observed, 

i.e. that the scoop “could have broken up enough to have left a lot of debris and mess on the -- on 

the coal bottom.” Tr. 185. The inspector agreed that it was “possible” but that he “didn't see any 

place that showed any signs of it hooving or breaking up like that.” Id. Despite those efforts to 

show that the condition developed quickly during the shift in which the inspector found the 

condition, the inspector refuted that idea, stating “[b]ecause that -- that didn't dry out and get that 

powdery dry in one shift. There is no way. It can't dry out that quick and run through it and -- it 

can't go from not being fluffy dry to have that much fluffy dry material.” Tr. 189. The Court 

finds the inspector’s view of the origin and duration of the accumulation to be credible. 

 Continuing with the theme that the condition could have developed quickly, 

Respondent’s counsel also attempted to show that the area could dry out quickly, assuming that 

the CFM was 65,000. The inspector agreed that would be a high rate of ventilation. Tr. 190. 

 

                                                             11 The inspector thought that the mine employs a “hot seat” procedure, which refers to a 

miner staying with his equipment until next shift worker arrives to take it over. Tr. 183-84. Later 

testimony confirmed the mine did use that procedure. 

38 FMSHRC Page 2633
However, he stated that it still wouldn’t dry out in one shift.12 Tr. 191. He added that, while it 

might start drying out if it was damp, one wouldn’t have 5 to 10 inches of fluffy, powdery 

material created in one shift. Tr. 191. 

The inspector also stated that the roof and ribs had been rock dusted but the mine floor 

was not. Tr. 191. He explained there were no mitigating circumstances, because, 

“if the accumulations [were] there and they had been watered down, then that would be a 

mitigating circumstance. But you've got agents of the Operator that go [ ] through that 

area, at least at the beginning and the end of the shift. And most of the time that foreman 

walks down to the end of the track more than once per shift.” 

Tr. 192. 

 Reviewing the inspector’s remark in his notes that the operator engaged in “aggravated 

conduct,” Respondent went through the basis for the inspector’s conclusion. The inspector wrote: 

“The listed condition or practice poses a high degree of danger to the miners, because the listed 

condition is located in the intake air course, primary escapeway for the 23-D section.” Tr. 195. 

Postalwait stated that the hazard was smoke entering the section. He did not feel that marking the 

order as non-S&S undercut that view. The smoke would derive from a fire, if the fire was 

allowed to continue, and the originating source would be from the scoop. The second basis for 

his aggravated conduct conclusion was the obviousness and the extent of the condition or 

practice. It was plain to him as soon as he entered the cited area. Tr. 195. 

 Challenging the inspector’s contention that an agent of the operator had been through the 

area, namely the claim that the 23D section foreman walked through the listed area several times 

on each shift, it was asserted that the foreman would have only traveled through the area in the 

morning. However, the inspector noted that it would also have been preshifted for the afternoon 

shift. Tr. 199. The inspector also refuted the claim that, under his interpretation, the mine would 

have to stop after each turn of the scoop and clean up the area, countering that, if the area is kept 

damp, as the ventilation plan required, then the scoop’s tires would not grind up the coal bottom 

so rapidly. He explained that it is when the bottom is left dry that it starts breaking down. Tr. 

207-08. Thus, the inspector made it clear that one doesn’t need to clean it up after every trip, “or 

ever ten trips” either. Instead, it takes “a lot of trips” for accumulations of this degree to develop. 

Tr. 209. 

 In response to a question from the Court regarding the inspector’s listing of aggravating 

factors, Postalwait stated it was his view that the establishment of only one of the factors would 

                                                             12 Respondent’s counsel also suggested that the inspector embellished his testimony from 

describing the accumulation as “powder dry” at the deposition to “fluffy material” at the hearing. 

The Court does not view the “powder dry” versus “fluffy” descriptions, which are nearly 

synonymous, to constitute a significant difference. 

38 FMSHRC Page 2634
not be sufficient to show aggravated conduct13 and that, personally, he has always required at 

least three of the factors for him to deem a violation as aggravated conduct. Tr. 220. The 

inspector attributed more weight to some of the factors too. For example, among the eight factors 

he listed, he considered an agent/operator presence in the area as a more significant factor. Tr. 

222. The inspector also believed that it was critical to his aggravated conduct determination that 

an agent of the operator was in the area; “[t]he 23 D section foreman walks through the listed 

area several times each shift.” Tr. 223. Another factor to which he attributed more weight is that 

he had personally put the operator on notice about the issue of 75.400 violations. Tr. 222. 

The Respondent’s Evidence 

 Glenn Lee testified for the Respondent. Tr. 225. He began working in the mines after 

completing high school, and he has 15 years of mining experience. Tr. 227-28. Presently, he is a 

section boss at the Loveridge No. 22 Mine, in charge of seven to eight men. Tr. 229. Lee stated 

he became aware of the order when he got out of the mine that day; he had been working the day 

shift that day, September 4, 2014, as the section foreman. Although the day ends at 4:00 p.m., 

one doesn’t actually leave until 5:30 p.m. because the mine does, in fact, hot seat. Tr. 230. The 

mine has three production shifts. (There is no maintenance shift; instead Lee stated they fix 

things if the equipment needs it, and this includes maintenance.) He confirmed that the mine 

employs about 500 miners. Tr. 232. Miners ride a rail on the track to the mouth of the section, 

and from there, they walk to the face. On the day in issue, he arrived at the section around 8:30 

to 9:00 a.m. He affirmed that he saw nothing odd, nor any hazardous conditions when he came 

through that area. Tr. 233. Supplies are at the end of the track. The scoop charger will be a break 

or two breaks from the end of the track; they are in the crosscut. Tr. 234. In that crosscut he had a 

bolt tub. The tub holds roof control bolt supplies and rock dust, and roof bolt plates and glue and 

3 foot roof bolts. In essence, it is used to bring supplies to the face. Tr. 235. The tub is heavy, 2 

tons when empty and he estimated that, when full, it would weigh 8 to 10 tons. Tr. 235. 

 Lee stated again that he saw nothing unusual; that he looked down the No. 1 & 2 entry 

and the No. 2 & 3 and in “every crosscut, all the way to the face.” Tr. 236. Though he looked at 

the preshift, he couldn’t recall what was on it. However, if there was something on it that stood 

out he would have corrected it right away. Tr. 237. Lee spends most of his day with his men on 

the continuous miner section. As for viewing the No. 1 to No. 2 entry or the No. 2 to No. 3 entry 

or the crosscut, he stated he would have been in those areas “twice, probably, at the most . . . 

going in ... [a]nd then at quit time.” Tr. 237. The preshift would’ve been done by the “outby 

bosses that fire boss the track and the belt for your section bosses.” Tr. 237. Lee stated that he is 

responsible “from the mouth of that section in.” The mouth is where the track starts into the 

section all the way to the face. Tr. 238. 

 Lee stated that the scoops that travel in this area are the 620’s. They weigh around 30 

tons. There are also 488 scoops and they weigh around 20 tons. Tr. 240. With a full load a 488 

scoop would weigh around 28 to 30 tons. Id. 

                                                             13 As it is a legal determination, the ultimate decision of whether conduct is “aggravated” 

is for the Court. 

38 FMSHRC Page 2635
 It is fair to state that Lee did not agree with anything in Postalwait’s order. He did not 

consider the condition to be an “accumulation” because that term applies, in his view, to 

something you neglect to clean as you mine. There also was no fine coal, he stated. It was only 

loose coal plowed up by the bolt tub when they scooped it up. Tr. 241-42. Also, he asserted that 

“none of the haulage was dry that they was running on.” Tr. 242. Lee stated what the scoop was 

running on was wet. Tr. 242. He stated that on his way in that day, he observed it to be wet. 

Further, his scoop operators know they have to water it before they run on any roadway. Lee 

stated that the scoops will make 10 to 15 runs during the day with supplies. Tr. 243. There are 

two scoops and there are times when both will be running. On that day there were a 620 and a 

488 scoop operating. Lee did not agree that the mine had been put on notice about the issue 

either. Tr. 244. In his estimation of the condition, he didn’t see “where there was no hazardous 

condition with that [accumulation].” Tr. 244. Accordingly, Lee and Postalwait presented two 

very different descriptions of the conditions for this order. The differences continued throughout 

Lee’s testimony, creating a need for the Court to resolve their testimonial conflict. 

 Directed to Respondent’s Exhibits 3a and 3b, a production report for the 23D section, Lee 

stated that he had seen it and noted that it is dated September 4, 2014. Tr. 245-46. He was the 

section manager on that day. The report “shows the number of footage you mine. Any delays that 

keep you from mining. Any maintenance problem. It shows the conditions, and the work you've 

done on a section.” Tr. 246. The report indicates that there were delays that day due to a pre-op, 

a conveyor belt off, rock dusting, another incident of the conveyor belt down and more rock 

dusting (for a second and third time). The second page of the report reflects more details of the 

record of the work shift. Tr. 246-49. 

Lee agreed that the report reflects that the entire area was rock dusted and scooped. Tr. 

251. He agreed that the area was adequately rock dusted and that no told him there was a 

problem with the section. Tr. 252. Lee then was directed to Ex 4 and identified it as the preshift 

that was called out before he went underground that day. The same exhibit reflects the daily and 

on-shift report for September 4, 2014, and (line) number 7, which states: “shuttle car roadways, 

Location. The Violation: needed watered. Action taken: watered roadways.” Tr. 254. 

 Lee did not agree with the inspector’s assertion about accumulations in the area, 

Well, to start with, at the end of the shift when he found the loose coal, it's where 

the bolt tub had been scooped up on the coal bottom. And the weight of that bolt 

tub, it plowed that coal bottom up, and it's piled up around where that bolt tub 

was. And as far as being dry, you don't water the crosscuts down much, if you're 

going to travel through them. And it's impossible to travel through [the crosscuts] 

because there are stoppings there.14 You just don't do it. 

Tr. 255. 

                                                             14 The stoppings were marked in red on the exhibit. 

38 FMSHRC Page 2636
Lee stated that scoops don’t travel through the stoppings area. At the location where the 

exhibit lists 27 inches, Lee asserted that was where the bolt tub was located and where it was 

scooped up. Tr. 256. 

There were other fundamental disagreements between Lee and Postalwait. Lee stated that 

the purpose of rock dusting and watering is to keep the dust down. He also stated that watering 

will not stop the coal bottom from digging up. Weight, he stated, causes the coal bottom to break 

up. Rather, he asserted, “Well, water won’t, but weight is what causes it, with water.” Tr. 256-

57. To the suggestion from Respondent’s counsel that the bottom will still dig up, regardless of 

the amount of water, Lee stated: “after a while water, when it settles, it will loosen coal up. But 

what really gets it is the weight of the piece of equipment running on it. It will bust the coal 

bottom up after a while.” Tr. 257. When the bottom breaks up, Lee asserted that “[a]s soon as 

you find it, you ask someone to get the scoop and clean it.” Tr. 258. Lee also stated that only the 

scoop operators travel in the area; foremen are not traveling in the crosscuts. Further, the tires of 

the scoop never go in the crosscut. Tr. 258. 

 Lee did meet Postalwait at the end of that shift and stated that in that meeting the 

inspector was “yelling, loud” and “pointing his finger.” Tr. 259, 261. Lee described the inspector 

as “acting crazy” and mad over the matter. Tr. 261. He said, “I'm tired of telling you people. This 

is unwarrantable.” He said, “I've told you and told you.” Lee responded, “You ain't told me. I 

ain't ever seen you before." Tr. 259 Lee also asserted that he told the inspector that the 

accumulations were from the scoop getting the bolt tub. “Yeah, my scoop operator -- I sent him 

down here to get a supply tub.” I said, “He's done that when he scooped his supply tub up.” Tr. 

260. Lee also agreed that this was the first time he had been in the cited area since the start of the 

shift that day. Tr. 261. Under the procedure used, supplies were all brought down to the end of 

the track, then the scoop picked up those supplies from the end of the track and then took them to 

the face. Tr. 261. Lee asserted that the scoops are carrying a lot of weight and that it doesn’t take 

long to break up the coal bottom. Tr. 262. Also, the outby foreman normally fire bosses the area 

and no one ever told him of a problem. Tr. 263. 

Lee’s explanation for the accumulation was: “That the bolt -- it's the width of the bolt tub 

had been shoved and plowed the bottom up. You could see the print of it. It was plain as day. 

Like the coal had been shoved. You could see the width of it and everything.” Tr. 263. The tub is 

pushed to get it loaded on the scoop. Lee asserted that this was the cause of the accumulation 

because there was no accumulation present at the start of the shift and the tub’s imprint also 

supported his explanation for it. Tr. 264-65. Lee maintained that he told the inspector the 

condition was caused by the bolt tub, but the inspector just wouldn’t listen. Tr. 266. Thus, Lee 

completely disagreed with the inspector’s claim, in the words of Respondent’s counsel “that this 

condition, from the No. 1 to No. 2, and then in the No. 2 and No. 3, the whole area, he said, had 

accumulations all over it.” Instead, Lee maintained that “the only thing I seen at the end of the 

shift is where the bolt tub had plowed the bottom up. And we had mine inspectors the previous 

days before, and they walked right through that same area, inspected it and never found a 

problem or a hazardous condition.” Tr. 267. 

 Again, Lee stated that the areas identified by the Respondent’s counsel, the No. 1 to No. 

2 and the No. 2 to the No. 3 and in the crosscuts, are not going to be watered, because nothing 

38 FMSHRC Page 2637
travels through there. Lee stated that the scoop’s tires never enter the crosscut, because the tub 

sticks out a bit into the entry. Lee was not involved with the abatement. Tr. 269. 

 On cross-examination by the Secretary, Lee agreed that it was his testimony that the 

condition was caused by a single bolt tub being pushed up into a crosscut. Tr. 271. Lee also 

agreed that, as the section foreman, he is in charge of and responsible for the entire section. He 

conceded that, in his role as section foreman, he spends most of his production shift down at the 

faces. Tr. 274. Also, he acknowledged that the mine has three production shifts and no dedicated 

maintenance shift. On the date of the citation, it was Lee’s first day as the section foreman on 

that shift. Id. Lee admitted that on that day the track was in the No. 2 entry and the track ended 

just outby the 46 block and that, to get to the face from the track, one passes through the 46 block 

and the No. 2 entry. Lee agreed that one of his duties is to complete the production reports and 

that one item is called “budget,” which Lee defined as “a quota they want you to hit, to be 

productive.” Tr. 277. For a continuous miner, the budget is 120 for a production shift, meaning 

that he is expected, as the shift foreman, to mine at least 120 feet per shift. Id. 

 In his testimony, Lee acknowledged that there is a section in the production report titled, 

“Delays” and that there are a number of things that interfere with being able to mine coal: 

The pre-op -- you can’t mine when you’re pre-opping. When the conveyor belt’s 

off, you can't mine because the coal pile will get too big . . . If the miner breaks 

down, the bolter on the miner. Just anything. Maintenance, conveyor belts, shuttle 

cargo down behind the loader, you're unable to mine. 

Tr. 278. 

Cleaning up part of a section, would also cause a delay, “if one had to stop to scoop, yes.” 

Id. Rock dusting also causes delays. In fact, Lee agreed that “[a]ny delay that causes you to stop 

production on the face must be -- it has to be written down in [the] delay section [of the report].” 

Tr. 278-79. Therefore, underscoring the importance of production, the testimony of Lee was 

clear that the reason for any production delay must be documented. 

 

 The delays must also note what was being done during that time, but Lee noted that was 

to his benefit to show what was accomplished. “Yes, it stops you from mining. For your benefit, 

you want it [documented] too. Because if you don't have a delay in there and you didn't mine no 

coal, it's hard to explain.” Tr. 280. The Court notes that it is fair to conclude by this testimony 

that there was considerable pressure to keep producing, and to fully explain such delays to 

production. 

 Directed to Respondent’s (“R’s”) Ex. 3, which has Lee’s handwriting on it, Lee stated 

that he mined 164 feet on that shift. As noted, the goal is 120 feet, so he made his “budget” that 

day. Tr. 283. Lee agreed that the No. 2 entry was being mined during his shift, and that the 

continuous miner was at that time just inside the 52 block, where the last opening was. Tr. 283. 

Lee confirmed that there was no record in his production report of scooping, shoveling or 

cleaning the 4 block in the No. 2 entry for that shift, stating that when cleaning up the No. 2 

entry, it was “[i]n the face itself, inby the last opening, where we was mining at.” Tr. 284 

38 FMSHRC Page 2638
(emphasis added). Lee agreed that he performed no cleanup of the No. 2 entry any farther outby 

than the 51 block because it had been previously cleaned. The tailpiece was at the 50 block that 

day. Tr. 285. Lee didn’t rock dust the No. 2 entry any further outby the 50 block during his shift. 

Tr. 286. 

 Regarding his on-shift exam duty, Lee stated he is to walk the section every two hours to 

do the faces, which are all inby the tailpiece. He will also go to the scoop chargers to make sure 

they are charging. They are located before one gets to the end of the track. Tr. 287. Lee stated 

that someone else fire bosses from the end of the track at the 46 block outby and from the 

tailpiece to the belt line. Tr. 288. He could not recall the individual who did that. He reaffirmed 

that he walked through the 46 block intersection in the No. 2 entry twice that day, at the start and 

end of his shift. Tr.288. He also repeated that wherever the scoop would run that day, the bottom 

was wet. Tr. 288-89. Last, he admitted that in R’s Ex. 4, under the violations section, item 

number 7, that record notes, “Shuttle car roadway ... needed watered and watered roadways.” 

The shuttle car roadway is inby the tailpiece. Tr. 290. On redirect, Lee stated that scooping, if it 

was in the 46 block, was within his responsibility and if it needed it, it would have been scooped. 

Tr. 291. 

 The Court had some questions of Mr. Lee, directing his attention to Ex. 5B. Lee agreed 

with the Court’s impression that the only area where Lee saw a problem was where the bolt tub 

had been deposited. Tr. 293. Thus, Lee disagreed with the inspector’s drawing showing the area 

covered 120 feet, and extended all the way across the intersection and the entry. Tr. 293. Thus, 

Lee saw the only area where there could be a 75.400 issue as the dotted area on the exhibit where 

the bolt bin was placed by the scoop. Tr. 293. Lee had left the mine when the abatement was 

being performed. Tr. 293. Asked if he later learned how long it took to abate the accumulation, 

he answered, “I don’t remember.” Tr. 294. The Court was surprised by that answer and pursued 

the questioning further, asking: “How would you explain that it would take seven men four hours 

to clean up this small area that you identified as being the only problem area as depicted on 5B?” 

Id. Lee responded: “Well, to start with, you can't get in a scoop in to clean it. You'd have to use a 

shovel. And I don't see seven men -- the boss sending seven men to do it. That's another thing. 

Because you cannot scoop it, because you have a ventilation stopping there. If you scoop 

towards it, you're going to knock the stopping down.” Id. 

 The Court continued, “Let's assume that shoveling is the way it's done. My question to 

you is: Based upon what you observed as being the only problem in this area, can you explain 

why it would take seven men shoveling to clean out this one area?” Lee admitted, “No. It would 

take a couple of hours shoveling to kind of -- . . . [with] [t]wo to three men.” Tr. 295. 

 Despite testimony from Lee suggesting that the coal bottom was ineffective, when the 

Court inquired further he retreated from that position. The Court expressed that it had 

the impression [from Lee’s testimony] that . . . having a coal bottom, as this mine 

had, is really ineffective. It doesn't last very long when you have a scoop running 

over it. Even though you have the coal bottom there so that the floor can 

 

38 FMSHRC Page 2639
withstand that activity, I got the sense from you that it's not very effective in 

terms of the purpose of it. Is that fair? 

Tr. 297. 

Lee’s response was, “Well, it's effective, because if you don't have it, then you don't mine 

at all. They tried it before, previous -- they tried to mine in the main bottom, the rock bottom, 

and the equipment was stuck in water, ceased mining, no production. It was bad.” Tr. 297-98. 

The Court takes note that Lee and Postalwait presented diametrically opposed 

descriptions of the conditions, which factual dispute the Court must resolve. However, Lee 

could not remember how long it took to abate the condition. In contrast, in the Court’s view, the 

inspector presented a more credible recounting, as he did offer specifics and it was 

acknowledged that he was quite animated about the conditions he found. The Court rejects the 

claim that the accumulation was solely created by the bolt tub and finds that the failure to water 

down the area explains why the accumulation developed. That finding, while important, should 

not cause one to lose sight of the fact that, apart from the source, there was an accumulation and 

it was extensive. 

 Jerry Michael Baker then testified for the Respondent. Baker’s work for Consol began in 

2011, as a section foreman. Tr. 304. Shown R’s Ex. 1, Order No. 8061842, Baker stated he was 

the afternoon shift boss on the 23D panel on September 4, 2014. Tr. 305. He arrived on the 

section at 4:45 p.m. that day. Id. As section foreman, he has to fill out the production report. Tr. 

307. As with Lee, Baker stated that the report shows where they mined that day and delays. Tr. 

308. His report reflects a stoppage of production, a delay, from 4:50 until 9:20 a.m., a delay of 4 

hours and 30 minutes. Id. Baker learned of the Order from the safety department, specifically 

from Larry Broadwater. He could not recall the substance of their conversation. Tr. 309. Nor 

could Baker recall speaking with the Inspector. After learning of the Order, Baker made 

arrangements to take care of it. Baker stated that he observed the cited area, but he could not 

recall what he observed. Tr. 310. The Court finds Baker’s testimony uninformative, as he was 

unable to recall much about the specifics of the cited condition. 

 Jeremy Devine was also a witness for the Respondent. He began working for Consol, at 

the Loveridge Mine, in August 2010. Tr. 317. In 2013 he was the safety director and safety 

supervisor at the mine. Tr. 319. Shown R’s Ex. 1, Devine stated he did not agree with the Order. 

Tr. 321. That said, he did not take issue with the date involved, nor that the 23D panel was the 

name of the section, or that the 46 block was the crosscut location, and 1 to 2 and 2 to 3, were the 

crosscuts involved. 

Devine did not agree however, with the measurements that were taken and he did not 

know if it was an “accumulation” or not. Tr. 321. The Court, concerned about the lack of a 

foundation, interceded with the examination. It then was revealed that Devine never went to the 

site to see the condition. Tr. 323. His information therefore was based entirely on what others 

told him. Apart from the particulars of the cited condition, about which Devine had no firsthand 

knowledge, he stated that he had seen scoops operating in the cited section. Tr. 330. He also was 

aware of the types of scoops being used and the contents carried by the bolt tubs. Tr. 330-32. 

38 FMSHRC Page 2640
Devine stated that the coal bottom will break up every time scoops drive over it. Further, he 

stated that watering does not make the bottom less likely to break up. Tr. 333. The bottom, he 

stated, will still get crushed and crumbled the same way and the purpose of watering is to keep 

the dust down. Tr. 333-34. 

On cross-examination, Devine admitted that he has never been an equipment operator; 

that before coming to Loveridge he was primarily doing engineering and landscaping. Tr. 334. 

At the time of this order, Loveridge had no requirement to take notes during safety inspections. 

Tr. 336. However, while not required, he stated he “encouraged” taking notes. Tr. 336. Devine 

agreed that Broadwater was the mine’s safety department representative accompanying Inspector 

Postalwait for this matter. Tr. 336. Broadwater took no notes about the matter, communicating 

only orally to him. It was Devine’s understanding that Broadwater assisted the inspector in 

taking the measurements of the accumulations. Tr. 336. Devine made no notes of his 

conversation with Broadwater. He stated that his only notes would be in his conference request 

about the matter. Tr. 337. 

The Court asked some questions of Devine. Devine agreed that he spoke with Mr. Lee, 

Mr. Baker and Mr. Wine about the order. The Court then asked if any of those individuals 

disagreed with the inspector’s assertion that there was an accumulation. Devine’s answer was a 

matter of semantics, his issue being whether it was correct to call the material an 

“accumulation.” As he expressed it, 

All except for the word “accumulation.” Whether it's an accumulation or whether 

it's broken up coal bottom, you know, that's what they were -- they didn't describe 

it to me as an accumulation. They described it as there was broken up coal 

bottom. This material was pushed in this hump here. The amount of material, the 

5 to 10 inches deep, was on the edge of the -- you know, pushed up on the scoop 

tire tracks. They just didn't use the word “accumulation.” 

Tr. 339 (emphasis added). 

Thus, Devine’s recounting of the three employees’ description supports the inspector’s view of 

the source of the accumulation. 

Discussion of Docket No. WEVA 2015-651; Order No. 8061842 

The Court read and fully considered the parties’ post-hearing briefs. 

As noted by the Commission in Sec. v. ICG Hazard, Inc., 36 FMSHRC 2635, 2641, 

October 7, 2014, Section 104(d)(1) establishes a “d-chain”15 framework in which an initial 

15 The “d-chain” refers the Mine Act's graduated enforcement scheme promulgated in 

section 104(d). Once a Section 104(d)(1) order has been issued, subsequent similar violations at 

the same mine must be issued as 104(d)(2) orders until such time as an inspection of the mine 

discloses no similar violations. 30 U.S.C. § 814(d)(2); see Lodestar Energy, Inc., 25 FMSHRC 

343, 345 (July 2003). 

38 FMSHRC Page 2641
violation that is both S&S and an unwarrantable failure is designated as a section 104(d)(1) 

citation, and any subsequent unwarrantable failure violation within the next 90 days, even if not 

S&S, necessarily results in the issuance of a section 104(d)(1) withdrawal order. 30 U.S.C. § 

814(d)(1).16

The predicate Section 104(d)(1) order having been established and conceded for all three 

orders in these two dockets, in order to establish the validity of a section 104(d)(2) Order, the 

Secretary’s remaining burden of proof is to show a subsequent violation of a safety or health 

standard, which violation was also caused by an unwarrantable failure. 

The Court notes that the cited accumulation in the primary escapeway factored into the 

inspector’s gravity determination, because both the primary and secondary escapeways would be 

impacted if there was a fire. The accumulation can only be described as extensive and the 

inspector’s testimony and his drawing, per Gov. Ex. 5B, was detailed, his measurements 

reliable. Being dry, such coal is easier to ignite. As the inspector noted, smoke would travel from 

the 46 block very quickly. The Court also agrees with the inspector’s designation that the 

negligence was high. This conclusion is supported by the fact that the condition was obvious and 

had existed for more than one shift, that he found no mitigating circumstances, and that he had 

spoken to the mine about violations under the 75.400 standard before this instance and therefore 

they were on particular notice of this issue. The source of the accumulation was as put forward 

by the inspector. The bolt tub cannot explain away the extent of the accumulations and, assuming 

arguendo that it was the cause, the extensive accumulation was present regardless of its origin. 

The inspector’s unwarrantable failure finding was also supportable based, as it was, upon his 

previously putting the mine on notice about complying with the standard and that the condition 

he found was obvious, taking seven miners four hours, entailing nine full scoop loads to clean it 

up. The standard had been invoked 267 times in the past two years, all to the mine operator. 

 The Court finds that the violation was established and that it was the result of an 

unwarrantable failure. As the Commission has stated, “Unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997, 

2001 (Dec. 1987). Unwarrantable failure is characterized by “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. 

MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). 

Whether the conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case, including (1) the extent of the violative 

condition, (2) the length of time that it has existed, (3) whether the violation posed a high risk of 

                                                             16 As expressed by Judge Zielinski in Sec. v. Tri County Coal, “For mines without a 

current history of Section 104(d) violations, a violation must be found to be both S&S and 

unwarrantable to justify issuance of a citation pursuant to section 104(d)(1) of the Act. If another 

unwarrantable violation is found within 90 days of such a citation, a withdrawal order is issued 

pursuant to Section 104(d)(1). Thereafter, any unwarrantable violation results in issuance of a 

withdrawal order pursuant to Section 104(d)(2) (the ‘d-chain’), until a complete inspection of the 

mine discloses no similar violations (a ‘clean’ inspection) . . .” 30 U.S.C. §114(d).” 34 FMSHRC 

3255, 3283 (Dec. 2012). 

38 FMSHRC Page 2642
danger, (4) whether the violation was obvious, (5) the operator's knowledge of the existence of 

the violation, (6) the operator's efforts in abating the violative condition, and (7) whether the 

operator has been placed on notice that greater efforts are necessary for compliance. See 

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); 10 Coal Co., 31 FMSHRC 1346, 

1350-57 (Dec. 2009). These factors need to be viewed in the context of the factual circumstances 

of a particular case. Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the 

relevant facts and circumstances of each case must be examined to determine if an operator's 

conduct is aggravated or whether mitigating circumstances exist.” Sec. v. Cam Mining 2016 WL 

5594251 *5, August 12, 2016. Among the listed factors, items one, two, and four through seven 

are consistent with the Court’s findings of fact that the violation was an unwarrantable failure. 

Penalty Assessment for Order No. 8061842 

 As noted, Order No. 8061842 was specially assessed at $23,800 while a regular 

assessment would have resulted in a $4,810 proposed penalty. 

The Commission has recently spoken to the approach the Administrative Law Judge is to 

take under such circumstances. Am. Coal Co., supra. To begin, it noted that 

Commission Judges are not bound by the Secretary’s penalty regulations set forth 

at 30 C.F.R. Part 100 or his special assessments. Their duty is to make a de novo 

assessment based upon their review of the record. The Commission does require 

an explanation of any substantial divergence from the penalty proposal of the 

Secretary. However, the Judge’s assessment must be independent, and the 

Secretary’s proposal is not a baseline or starting point that the Judge should use a 

guidepost for his/her assessment. 

Id. at *3. 

It goes on to state, 

Penalty assessments must reflect proper consideration of the penalty criteria set 

forth in section 110(i). The Commission requires a duality in judge’s penalty 

analysis, stating on the one hand, that, essentially, it was “[re]affirming the right 

and duty of Commission Judges to make assessments independently,” while, on 

the other hand, simultaneously requiring an “explan[ation] [for] any substantial 

divergence between the penalty proposed by MSHA and the penalty assessed by 

the Judge. 

Id. at *6 (citing Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). 

 How a judge is to address the special assessment seems to rest upon the oft invoked legal 

response that “it depends.” The Commission noted that the “Secretary [ ] does bear the ‘burden’ 

before the Commission of providing evidence sufficient in the Judge’s discretionary opinion to 

support the proposed assessment under the penalty criteria [and that] [w]hen a violation is 

38 FMSHRC Page 2643
specially assessed that obligation may be considerable.”17 Id. That said, the Secretary’s proposed 

penalty cannot be glided over, as the Commission also stated, 

“Judges must explain any substantial divergence between the penalty proposed by 

MSHA and the penalty assessed by the Judge. The rationale was plain and 

continues to be important. If a sufficient explanation for the divergence is not 

provided, the credibility of the administrative scheme providing for the increase 

or lowering of penalties after contest may be jeopardized by an appearance of 

arbitrariness.” 

Id. at *7 (citing Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 

1147 (7th Cir. 1984)). 

The Commission’s reason for requiring an explanation for a substantial divergence 

between the Secretary’s proposed penalty and a Judge’s assessed penalty is to maintain the 

integrity of the assessment process. See Id. at 8; Cantera Green, 22 FMSHRC at 621.. 

 Accordingly, as this Court reads the Commission’s decision in American Coal, a judge 

must, on one hand, consider the Section 110(i) penalty criteria in making a de novo penalty 

assessment, but in doing so a judge must also explain the basis for agreement with, or any 

substantial divergence from, the Secretary’s proposed penalty. Id. at 10. This approach applies to 

regular or special assessments.18

The Secretary’s narrative findings for Order 8061842, once past the boilerplate language, 

provide only a very sparse explanation. Jt. Ex. 2. The findings state, “[t]he gravity was 

                                                             17 The Commission suggested that MSHA’s special assessment form “Exhibit A” may, or 

may not, explain the basis for its proposed penalty, “When MSHA elects to specially assess 

violations under Section 100.5, its Office of Assessments sends operators a special assessment 

version of ‘Exhibit A’ that includes Narrative Findings for a Special Assessment (‘Narrative’) 

purportedly to explain the agency’s rationale for the proposed special assessment.” Id. at 5. It 

added that “[a] lack of explanation or justification for the Secretary’s special penalty proposal 

may fail to provide sufficient notice to the operator of the facts upon which the Secretary relied 

to specially assess the penalty to prepare its rebuttal.” Id. at n. 6. It seems fair to conclude that, 

where the information supporting the special assessment is scant, less attention may be paid to 

Exhibit A. 

18 “For either regular or special assessments, the Secretary’s proposal is not a baseline 

from which the Judge’s consideration of the appropriate penalty must start. The Judge’s 

assessment is made independently and, regardless of the Secretary’s proposal, the Judge must 

support the assessment based on the penalty criteria and the record.” Id. at 9. Accordingly, “if the 

Judge did rely on the Secretary’s specially assessed proposed penalties as a benchmark, the 

Judge should explain whether and how he also independently arrived at the penalty amounts 

based on the statutory penalty criteria and the record. Essentially, we are affirming the right and 

duty of Commission Judges to make assessments independently. . .” Id. at 11. 

38 FMSHRC Page 2644
considered serious.” Id. After repeating the description of the accumulation, it adds “[i]n the 

event of sparks from operating equipment [sic] could have propagated a fire and coal dust 

explosion that could have resulted in serious or fatal injuries.” Id. The narrative then continues 

with the assertion that the “violation resulted from the operator’s high degree of negligence,” 

citing an inadequate preshift exam in failing to identify the accumulations, and it ends by noting 

that the cited standard had been cited numerous times at the mine. Id. 

The Court notes that, while the conditions were extensive, and the negligence was 

marked as “High,” the inspector deemed the violation non-S&S, marking the injury or illness as 

unlikely and, among the four choices for the reasonably expected injury or illness, listed it as 

“Lost Workdays Or Restricted Duty,” and not either of the two, more serious, categorizations of 

permanently disabling or fatal. 

The Secretary argues that, per Jt. Ex. 2, the Respondent’s unwarrantable failure and high 

negligence indicates the need for greater deterrence than the regular assessment. The Court 

agrees with the need for greater deterrence, but the Secretary’s sparse justification falls short of 

demonstrating that a nearly five-fold increase is warranted. Instead, the Court doubles the 

regular assessment figure and imposes a $9,620.00 penalty for the violation. Assessing twice 

the amount yielded under the regular assessment will have the effect of greater deterrence. The 

assessment also is reasonable in light of the fact that the violation was not deemed to be S&S by 

the issuing inspector. Properly, the negligence and unwarrantable failure figured prominently in 

the penalty determination. The other penalty criteria were each duly considered. Good faith by 

the operator, that the penalty would not affect the ability to continue in business, and that the 

mine is large and owned by a large operator, were agreed upon. However, as noted, the Court 

cannot adopt the assertion of the Secretary that the “gravity was serious and the violation posed a 

high degree of danger,” given the inspector’s evaluation on the order itself and his testimony at 

the hearing. Sec. Br. at 29 (emphasis added). 

Docket WEVA 2015-762 and Order Nos. 8061991 and 8061992. 

Inspector Postalwait testified for these Orders as well. He was at the Loveridge Mine 

again on October 21, 2014. Two 104(d)(2) orders are in issue. Gov. Ex. 6 relates to Order No.

8061991, while Gov. Ex. 7 relates to Order No. 8061992.

19 The inspector arrived at the mine at 

7:40 a.m. that day whereupon he reviewed the preshift examination report for the 24D section, 

which was conducted for the day shift’s benefit and use, which shift began at 8:00 a.m. Tr. 348. 

That preshift report did not note any hazards. Tr. 349. The report did list one violation, pertaining 

to an emergency car, which was referred to as an “E” car. Gov. Ex. 9 is the mine’s preshift report 

for the day shift on the 24D for October 21st. That preshift was performed by Justin Tinney, who 

was the section foreman for the midnight shift. Tr. 349-50. Tinney called out his preshift at 7:10 

a.m. The locations and violations section of the report lists, at line 1, that the E car needs wedges 

and headers and, at line 2, it lists “tailpiece” and, under violations, “[a]ccumulations on tail 

roller,” which was marked as “identified.” 

                                                             19 Gov. Ex. 8 reflects the inspector’s notes for those two orders. 

38 FMSHRC Page 2645
 Critically, when asked if that entry, in line 2, in the preshift examination record was 

present before he went underground that day, the inspector answered “No.” Tr. 351. Gov. Ex. 9. 

Postalwait first saw that entry in the preshift book after he returned to the surface at the end of 

the shift, which was after he had issued the two orders in this docket. Tr. 351-52. 

Because of the import and potential significance of the inspector’s answer, the Court 

wanted to make sure that it understood the inspector’s answer. The inspector confirmed that the 

information on Line 2 was not recorded when he examined the preshift report. Tr. 353. Further 

questioning from the government underscored this. Directed to the Remarks section at the 

bottom of Ex. 9, the inspector read that it states: “Area safe at time of exam. . . . except above 

noted accumulation at tailpiece, air in proper direction and all COs and electrical installation 

visuals okay.” Tr. 353. Asked if any of those remarks were in the preshift examination that he 

reviewed before going underground that day, the inspector stated that “[t]he only thing I seen 

that day was the first part where it says: Area safe at time of exam.” Tr. 353. Further, asked 

about the next sentence, which states: “Except above-noted accumulation at tailpiece,” the 

inspector responded that he did not see that statement either at the time before he went 

underground. Tr. 353. To be clear, the reader should understand that the preshift exam report had 

been altered at some point after the inspector viewed it that morning. The Respondent does not 

contend otherwise. 

 The inspector was then asked about the 24D section, which is also referred to as the 24 

West section, and Gov. Ex 10, which is a map of the underground area for 24D.20 The 24D belt 

line was a little less than 4 blocks long at that time. The belt line had been installed the day 

before, as it was running on October 20, 2014. Tr. 357. 

Postalwait then went underground with Mike Savasta of the mine’s safety department and 

Frank Cabo, the miners’ representative. Tr. 358. The inspector issued the violation at about 8:55 

that morning, as they were walking to the section. Tr. 359, Gov. Ex. 8, at page 9. The day shift 

had not yet started. The inspector saw the midnight crew leaving and the day shift crew arriving. 

Tr. 360. Postalwait was walking up the No. 2 entry when he observed accumulations and 

immediately issued a violation. The violation was in the scoop haul supply road, coming up to a 

crosscut, where the tailpiece was located. Part of the accumulation was inby and part of it was in 

the crosscut leading to the two entries. He observed Justin Tinney, the section foreman for the 

midnight shift leaving, passing him just outby of the area that he cited. Tr. 361. 

 As he was looking at the accumulations he heard the sound of coal grinding in the 

tailpiece. This was about 80 to 90 feet inby from his location at that time. Tr. 362-63. From his 

experience, he was familiar with the sound of tail rollers running in accumulations. Tr. 363. He 

 

                                                             20 The inspector confirmed that Ex. 10 is a map of the section where he issued the two 

orders in this docket, and that it shows the section’s development as of October 21, 2014. Tr. 

354. 24D is the fourth entry over and it is the area marked in blue, a vertical line, where it lists 

“24 West,” going to the bottom of the page. Tr. 355-56. The numbers seven, eight, nine, and 10 

refer to the crosscuts. Tr. 356. The blue line represents the main line conveyor belt. Tr. 357. 

38 FMSHRC Page 2646
stated that Mike Savasta and Frank Cabo agreed they heard the sound too. As he described it, 

When we got down, walked down to the tailpiece, there was a shuttle car sitting 

on the tailpiece, where it had been dumping coal on it. And we seen that it was 

gobbed out21 and there was coal coming out of the sides, from around the roller on 

the tailpiece. And I don't know if I asked Mike to turn it off or he just turned off 

the conveyor belt, because it was still running. 

Tr. 365. 

The belt was running when he observed the condition. Tr. 365. The inspector took photos 

of the condition that day, October 21, 2014. Tr. 366. Gov. Ex. 11A through 11G. In addition, 

Gov. Ex. 12A through 12G, are the same photos as Gov. Ex. 11A through 11G, but they are 

enlarged. Ex. 12A shows the tailpiece gobbed out, with the tail roller and conveyor belt turning 

in accumulations.22 Tr. 368. The inspector confirmed that the accumulation he observed was 

coal. Tr. 371. Parts of the coal accumulations were dry and parts were damp. The tailpiece roller 

itself is about 5 or 6 feet wide and it was in contact with the coal. The roller is about 6 inches off 

the mine floor. Tr. 376. The belt itself is about 5 feet wide. Tr. 373. 

The inspector stated that the accumulations developed because 

They was using the shuttle car instead of the feeder.23 Normally you have a coal 

feeder sitting on the tailpiece, where you dump the whole shuttle car, and the 

feeder will regulate how much goes onto the belt. So your coal feeder is not there, 

                                                             21 “Gobbed out” refers to his seeing spillage and accumulations, with the tailpiece roller 

turning in the accumulations. Tr. 365. 

22 The inspector added details to the photograph noting, among other things, that in the 

top right corner of Ex. 12A the grey or brownish object is the end of the shuttle car, sitting where 

it was dumping onto the tailpiece. Guarding is on the inby end of the tailpiece. Between the inby 

piece of guarding and the tailpiece, coal had been spilled where they were trying to dump it. Tr. 

369. Ex. 12B is additional evidence of the accumulation, with the inspector confirming that, “[i]t 

shows the same thing, where you can see the coal is around the tail roller. And as the tail roller 

turns, where the coal is in it and the tail roller is turning in it, it’s pushing the coal back. That’s 

the reason that guarding was on an angle, because it's pushing it -- trying to push it away from 

it.” Tr. 370. 

23 A coal feeder, as defined by the inspector, “is what you dump larger amounts of coal 

into it, and then it’s got a choker chain in it to where it regulates what it dumps onto the belt and 

how much it dumps on the belt.” Tr. 459. 

38 FMSHRC Page 2647
so they was dumping it straight out of the shuttle car onto the belt. And that’s 

where those accumulations came from.24 

Tr. 374. 

Postalwait agreed that, in his mining experience he has seen a feeder totally covered up 

because of a shuttle car operator dumping haphazardly. Tr. 459. 

Gov. Ex 11C and the enlarged image at Ex. 12C, shows what was in-between the roller 

and the guard, on the inby side of the guard. The inspector took the photo facing outby. Tr. 377. 

There are two black mounds, representing coal spillage where they were dumping, in front of the 

tailpiece guarding and the tailpiece. Tr. 377-78. Gov. Ex. 11D depicts “part of what was 

shoveled up, cleaned up, gobbing the conveyor belt, in front of it. The piles in front of it.” Tr. 

380. The inspector explained that this was done to abate the order, “This is what they done to 

clean it up. They shoveled it up.” Id. The middle of the photo shows the accumulation of the coal 

that they shoveled up. Tr. 381. The accumulations were of a degree that the belt couldn’t hold 

anymore, “[s]o they goosed the belt a little bit, moved it down, and they shoveled more. This is 

where they goosed it down. This is what was on down the belt. And the other part was on the 

belt, still up on the tailpiece.” Tr. 381. Exhibits 12D and 12E depict the amount of coal that had 

accumulated. Tr. 381. 

 Postalwait took six measurements of the accumulations at the tailpiece. Tr. 388. The 

shallowest area was seven inches and the deepest was 30 inches, inby the tailpiece, as depicted in 

the right upper quadrant of the photos, per Gov. Ex. 11A and 12A. Tr. 389. The accumulations 

were six feet in length and 101⁄2 feet wide. Tr. 390. The area measured included under the 

tailpiece because the accumulations were there as well. As noted above, the accumulations were 

damp to dry, a determination he made by picking up samples in his hand in “several different 

places.” Tr. 390-91. Though some of it was damp, it was not so damp that it would stick together 

and some of it was dry and dusty. Tr. 392. He added that, “all the way around, where the belt and 

the tailpiece was running, it was dry. And it extended back in a little bit, from where the heat 

would dry it out as it was pushing it back.” Tr. 392. His finding that the coal accumulations were 

dry near the tailpiece roller informed him that it was generating heat from the friction where the 

tailpiece roller and conveyor belt were turning in those accumulations. Tr. 393. Some of the 

accumulations were compacted, “inby the tail roller, where it was pushing the tail back this way, 

to push it away from it as it was turning. Then once it started building up, it started pushing it in 

tighter.” Tr. 394, referencing Gov. Exhibits 11A and 12A; in the center area of those photos 

between the tailpiece roller and the inby guarding. 

 Postalwait also found a second accumulation in the belt entry. This one was at the 

overcast, about a block and a half to two blocks outby the tailpiece. Tr. 395. This accumulation 

was dry and it appeared to the inspector that it resulted from something being left behind and not 

initially cleaned up. Tr. 396. This second area of accumulation was cited in the same order. Tr. 

                                                             24 A feeder reduces spillage but it is not required to have one. Consequently, when 

dumping coal directly on the tailpiece more spillage is generated. Tr. 375. As noted, in this 

instance no feeder was present. Tr. 376. 

38 FMSHRC Page 2648
396; Gov. Exhibits 11F and 12F (photos of this second area of accumulations). Using the same 

procedure as before, the inspector determined that the accumulations were coal. The 

accumulations at the overcast were measured by the inspector who found them to be: “20 to 30 

inches deep, 5-1/2 feet [wide] from the rib out to the edge of it, and 26 feet in length along the 

rib.” Tr. 402. As mentioned, the inspector concluded that this other accumulation was not due to 

rib sloughage, nor spillage off of equipment, but that it was simply left behind by not initially 

cleaning up after the area was mined. Tr. 403. 

After seeing the two accumulation areas, the inspector planned to issue a 75.400 

violation. Because the entourage could not find any “DTIs” [date/time/initials] marking on a 

board, nor anywhere else, to show that Justin Tinney had done that preshift, Postalwait wanted to 

speak with Tinney, the section foreman during the midnight shift, and as such, the person who 

did the preshift exam for that oncoming day shift crew. Tr. 405. The inspector and the two others 

with him walked the full length of the 24D belt, including to the point where that belt had the 

transfer point with the mother belt, but no DTI’s were found. Tr. 407. Speaking with foreman 

Tinney afterwards, Tinney admitted to the inspector that he didn’t put DTIs anywhere, as there 

was no board and, while he contended that he went to the face to get a board, he didn’t make it 

back. Tr. 408. 

Compounding this concern, the inspector asked Tinney “if he [had] seen the 

accumulations at the tailpiece, where the belt was running in it and the tail rollers was running in 

it.” Tinney admitted to Postalwait that he had seen the accumulations while doing his preshift 

exam, but that he did not call it out in his preshift report, nor did Tinney shut the belt off. Tr. 

408-09. Tinney’s explanation to Postalwait was that he told the shuttle car operator to clean it up. 

However, the inspector saw no evidence that any efforts to clean up the accumulation at the 

tailpiece had been made. Postalwait recorded this information in his daily notes for the day, 

October 21, 2014. Tr. 409-11 and Gov. Ex. 8 at page 29. 

 The Court concludes that Postalwait justifiably issued a (d) order on the 75.400 violation 

because the accumulation was present when Tinney did his pre-shift exam. Tr. 412. For the 

related violation, citing the preshift obligation under 75.360, his determination for that violation 

was made after he spoke with Tinney on the telephone. Tr. 412. Of great and understandable 

concern, when the inspector returned to the surface that day, he looked at the preshift exam for 

the 24D a second time. This time the exam listed the “accumulations” in the tailpiece. Tr. 412. 

The inspector also noted that it was not described as “spillage.” While spillage refers, in his 

view, to something that just occurred, it is not synonymous with the term “accumulation,” as the 

latter refers to something that was known, allowed to exist, and not corrected. Tr. 413. 

Order No. 8061991 was issued at 10:15 a.m., and marked as reasonably likely and S&S. 

Tr. 414. Gov. Ex. 6. The reasons for those findings were, “Because the conveyor belts and the 

tailpiece was running in accumulations. You had the combustible material, and then you also had 

the friction heat source present. Because it was drying out, and there was an ignition source . . . 

[and the hazard was] [f]ire, smoke.” Tr. 414. 

The inspector affirmed his view that a “fire triangle” was present: oxygen, fuel and an 

ignition source. Tr. 414. He also marked the injury as lost workdays or restricted duty, due to 

38 FMSHRC Page 2649
smoke inhalation or burns from a fire. Upon determining that the air at the tailpiece was going 

outby on the belt, instead of going through the section, the number affected was later modified 

downward from eight to two persons - the shuttle car operator and the beltman.25 Tr. 415. The 

inspector also marked it as high negligence, because there had been several 75.400 violations at 

this mine. He saw no mitigating circumstances; Mr. Savasta offered none and he did not view 

Tinney’s statement that he told the shuttle car operator to clean up the accumulation as 

mitigation, as the belt was not shut down. Tr. 416-17. Further, Postalwait expressed that, as the 

section foreman is the responsible person, it is insufficient to merely instruct that work or 

cleanup be done, one must make sure the corrective action is actually then done, especially in 

this situation where there was a risk of fire. Tr. 418. The inspector believed that the condition 

occurred during the midnight shift. No coal had been run on the belt until the midnight shift and 

Tinney admitted to him that the condition existed during the midnight shift. Tr. 419. 

The 24D midnight production shift for October 20, 2014, Gov. Ex. 13, reflects that the 24 

West belt was in place so that the mine could test run it and train the belt. Tr. 420. There was no 

indication that the belt was used to deliver coal during the October 20th afternoon shift. Tr. 421. 

Tinney’s production report for the next day, the midnight shift for October 21st, Gov. Ex. 14, 

reflects that 27 feet of coal, some 108 tons, was mined on that shift. The delay section of the 

report shows that there were numerous delays and that no coal was running past 5:00 a.m. on that 

shift. That informed the inspector that the same conditions he found were there from when 

Tinney’s preshift exam was made. Tr. 423. One of the delays, from 6:35 a.m. to 7:00 a.m., 

reflects cleaning up tailpiece and shuttle car dumping, but the inspector saw no indication that 

any shoveling had been done. Tr. 425-26.26

25 The examiner, while in that area, could have been included, but the number affected 

remained at two. 

26 Upon review of the testimony, the Court adopts the Secretary’s position that 

“according to Mr. Tinney’s midnight shift production report, the section had not produced coal 

from 5:00 a.m. through the end of the midnight shift. There are six entries in the delay section of 

the production report that cover the entire time between 5:00 a.m. to 8:40 a.m. during which the 

section did not produce coal (Gov. Ex. 14; Tr. 542-44). The section was not producing coal at the 

time the Inspector arrived on the section at 8:55 a.m. and no coal was being dumped on the belt 

when he arrived at the tailpiece at 10:15 a.m. (Tr. 365-66; 471). Further, it defies logic for the 

section to continue to dump coal on the tailpiece when the belt was down from 5:00 a.m. until 

8:40 a.m. because there would be no place for the coal to go. Therefore, it is unlikely that 

spillage at the tailpiece could have gotten worse after the examination; it is more likely that the 

accumulation existed in the same condition as the Inspector observed at 10:15 a.m. Although Mr. 

Tinney testified the tailpiece had been cleaned and that shuttle cars continued to dump coal on 

the tailpiece after 5:00 a.m., he never actually witnessed this (Tr. 543-44; 565). When asked if he 

saw anyone cleaning the tailpiece, he responded, “Like I said, it’s been so long ago” (Tr. 544). 

When asked if he may have written the entry in the production report for “cleaning at tailpiece” 

from 6:35 a.m. to 7:00 a.m. because someone had told him it took place, he said, “Yes, ma’am. 

Well, I mean I’m not -- I can’t remember exactly, but that’s usually how it happens” (Tr. 544). 

Mr. Tinney could not remember when he actually performed the examination between 5:00 a.m. 

(continued...) 

38 FMSHRC Page 2650
Returning to his conclusion that both conditions, at the conveyor belt and tail roller as 

well as at the overcast, were unwarrantable failures, the inspector stated that he considered both 

accumulations to be extensive. For the overcast area, however, there was no ignition source. Tr. 

424. In terms of Postalwait having put the operator on notice for this type of violation, as noted,

he stated that previously he had verbally warned the mine about this and had issued violations for

75.400 too. Tr. 425. He considered the conditions cited in Order 8061991 to be obvious –

because they could be viewed on either side of the belt and because one could hear the condition.

Tr. 426. The inspector believed that the accumulations at the belt posed a high degree of danger

due to the friction heat source and the combustible materials, creating a hazard of fire and smoke.

He also believed that there was a “good chance” it could catch on fire, if the conditions had been

permitted to continue. Further, the operator, through its agent, knew of the condition, because the

condition was present when the preshift examiner made his exam, a conclusion the inspector

reached based upon the production reports and the admission Tinney made to him. Tr. 427.

Turning to the related preshift violation order, No. 8061992, Gov. Ex. 7, the inspector 

issued that order, citing 30 C.F.R. § 75.360(a)(1). The section from that standard provides, 

Except as provided in paragraph (a)(2) of this section, a certified person 

designated by the operator must make a preshift examination within 3 hours 

preceding the beginning of any 8-hour interval during which any person is 

scheduled to work or travel underground. No person other than certified 

examiners may enter or remain in any underground area unless a preshift 

examination has been completed for the established 8-hour interval. The operator 

must establish 8-hour intervals of time subject to the required preshift 

examinations. 

30 C.F.R. § 75.360(a)(1). 

The inspector issued the order at 10:25 a.m., after speaking with Tinney. It references his 

earlier-issued order, No. 8061991. The inspector affirmed that the conditions cited in Order 

8061991 should have been identified in the preshift, resulting in the violation for Order No. 

8061992. By failing to so identify the conditions, the oncoming miners would not be alerted to 

the hazard. Tr. 428. Summarizing the basis for that conclusion, the inspector stated, 

Whenever I talked to him on the phone, he told me that the condition was there. 

Whenever I reviewed the production reports, it shows me that it was there at that 

26 (...continued) 

and 7:00 a.m. (Tr. 545). Mr. Tinney could not remember which side of the beltline he walked 

during his examination (Tr. 535). He could not remember what time he instructed the shuttle car 

operator to clean the tailpiece and what, if anything, the shuttle car said in response (Tr. 560). He 

could not remember if he walked the beltline again after examination (Tr. 561). One of the few 

things Mr. Tinney did remember was that he never returned to the tailpiece or followed up with 

the shuttle car operator to see if the tailpiece had been cleaned (Tr. 561). Mr. Tinney could not 

reliably account for his whereabouts during the shift, and no other evidence supports that he was 

in the area of the 24-D beltline.” Sec’y Br. 35-36. 

38 FMSHRC Page 2651
time, based on when that report shows that they mined. And from my experience, 

it didn't just occur. It was dried out, and it takes a bit of time for it to dry out. 

Tr. 429. 

Postalwait stated that Tinney, had he acted properly, should have immediately shut down 

the belt and directed that the accumulation be cleaned up. Tr. 429. Further, on his preshift report, 

it should have been called out so that the oncoming crew could have dealt with it. His conclusion 

that it was an S&S violation was based upon his view that, “It's reasonably likely by failing to do 

the right thing, to do an adequate exam, that this condition is going to create a fire. Because 

you've got all the – all three triangles [to create a fire are] there.” Tr. 430-31. Smoke inhalation 

and burns were marked as the type of injuries from a fire.27 Tr. 431. As expressed previously, 

demonstrating his reasonableness in evaluating the violation, the inspector modified the number 

of persons affected from 8, as originally marked, down to 2 – the beltman and the shuttle car 

operator. Tr. 431. He deemed it to be high negligence because, as noted, he had previously put 

the operator on verbal notice about the accumulations problem and had issued violations for that 

standard. Nor were any mitigating circumstances presented, as neither Savasta nor Cabo offered 

any and they agreed there were no DTIs markings along that conveyor belt. Tr. 432. Both those 

individuals helped Postalwait look for DTIs and Tinney admitted he made none. Tr. 433. Nor did 

he consider Tinney’s assertion that he told the shuttle car operator to clean up the accumulation 

to be a mitigating factor, because Tinney allowed the belt to continue running and he did not 

follow up to see that the condition had been corrected. Tr. 433. Adding the condition later on to 

his preshift exam record was certainly of no help because the next shift had already entered the 

mine and therefore could not be alerted to the problem. Tr. 434-35. 

Regarding Tinney’s admission as to not marking any DTIs, the inspector stated again that 

he asked Tinney if “he put any DTIs on the 24-D conveyor belt” and “he [Tinney] said he did not 

put on any DTIs.” Tr. 449-50. When Respondent’s counsel suggested that there is no 

requirement that DTIs be on the belt, the inspector agreed but added, 

Normally they have them at the tailpiece, at the head drive, and sometimes they’re 

at the discharge roller. .... you have to put them in enough places to show you 

covered the entire area. But that's where you always see them at. Then you see 

them -- if it's a longer belt, you'll see them spread out down the belt, every so far, 

showing that they traveled that whole thing. 

Tr. 449-50. 

When it was suggested that Tinney saw something different than the inspector, the 

inspector made his position plain yet again, “I asked him if he seen where the tailpiece and the 

belt was running in the accumulations, at the tailpiece. And he said yes.” Tr. 453. Thus, 

27 Respondent’s cross-examination of Postalwait included an inquiry about whether the 

area was adequately rock dusted, an attempt to show that the combustibility was diminished and 

therefore that the risk of hazard occurring was lessened. Tr. 442-48. The Court would comment 

that rock dusting does not address the accumulation hazard, nor negate the combustibility of the 

cited condition. 

38 FMSHRC Page 2652
Postalwait made it clear that if Tinney were to assert that he saw nothing turning in coal, the 

inspector was not about to retreat from his statements about Tinney’s admission to him. Tr. 453. 

Respondent’s counsel suggested that only a small amount of spillage, not an accumulation, was 

the condition that was present and that Tinney’s direction to clean up the material was sufficient 

and reasonable and did not require that he follow up to see that it was done. Tr. 456. However, 

that focus avoids the issue of the integrity of the belt and the rollers. The Court reaches two 

conclusions about these issues. First, the questions assumed that it was merely ‘spillage’ that was 

involved. Second, assessing the inspector’s credibility, the Court was struck by the 

reasonableness and believability of his testimony on those issues. 

The inspector distinguished between mere spillage and a conveyor belt or roller turning 

in coal. Tr. 460. As he explained, “Where you dump the coal onto the feeder, where it will 

overflow, that is too far away from the conveyor belt to affect the conveyor belt.” Tr. 460. 

Further distinguishing spillage, the inspector added that one can have spillage, “[b]ut that's what 

the feeder is made for. If you have spillage around the feeder, then you've got to address it in 

your cleanup plan how you're going to keep that cleaned up around the feeder.” Tr. 461. 

 Respondent’s counsel noted, per Gov. Ex.14, that at the entry for 6:35 to 7:00 a.m. a 

delay is recorded, and it states, “Dumping in tailpiece, T/P.” Tr. 466. The inspector agreed that 

“T/P” would be shorthand for “tailpiece, and that literally it indicates that they were cleaning the 

tailpiece during that time. However, the inspector did not buy into the words, adding in his 

response, “that’s what it says.”28 Tr. 467. Drawing the distinction, the inspector emphasized that 

he was relying on what Tinney told him directly, not the written claim that they were cleaning 

the tailpiece. Further, the only ‘mitigation’ that was presented to Postalwait at the time had 

nothing to do with such a claim; rather it was simply that Tinney had just begun working as a 

foreman, and the inadequate response was implicitly attributed to his inexperience. Tr. 469. 

Postalwait reasserted that he knew they had not been running coal because “the shuttle car was 

sitting there.” Tr. 471. The dumping that was going on was directly onto the tailpiece, because 

they were trying to get the feeder working. Tr. 472. 

 Revisiting, during the cross-examination, Tinney’s failure to put DTIs on the tailpiece, 

the inspector stated that Tinney told him he didn’t have a board, that he went to the section to get 

one, and that he didn’t make it back. Tr. 479. Directed to the inspector’s deposition, at page 36, 

                                                             28 Further, upon inquiry by the Court, Postalwait stated that, when referring earlier to the 

delay from 6:35 a.m. to 7:00 a.m. and his remark “that’s what it says,” the inspector confirmed 

that his remark suggested that he was skeptical of the explanation for the delay and whether that 

was really going on. Tr. 503. This, the inspector stated, did not imply that Tinney was lying, but 

rather that he saw no evidence of anything being cleaned, adding “Nothing. I didn't even see a 

shovel at the tailpiece. They had to go get one. But there was nothing -- nothing shoveled 

nowhere. And they -- if they had cleaned at that time, you would have been able to have seen it. 

And it wouldn't have dried out in that length of time.” Tr. 504. To be clear, even though there 

was an attempt to repair the damage from the inspector’s assertion of doubt about the production 

report, he stated, “Well, I have doubt in that report, based on what I seen.” Tr. 505. The inspector 

clarified that apart from his doubts about that part, he was not asserting that the entirety of the 

production report was untrue. Id. 

38 FMSHRC Page 2653
the inspector acknowledged this was the excuse Tinney offered. However, the inspector added 

that “But I asked him about the whole belt, not just at the tailpiece. . . . [the inspector] asked him 

if he done the exam on the belt and where his DTIs were . . . [a]nd that's -- and he said he didn't 

put any up.” Tr. 481 (emphasis added). 

 In terms of gravity for Order No. 8061991, Gov. Ex. 6, the inspector repeated that his 

S&S determination was based upon the triangle of fire presence. Tr. 483. As for his high 

negligence marking, Postalwait saw no mitigating circumstances because no one presented such 

information, such as showing that the mine was doing something to prevent, correct or reduce 

the hazard. Tr. 484. The inspector utilizes summary cards to remind him of the criteria for 

negligence, aggravated conduct and mitigating circumstances. Regarding mitigation, the 

inspector read that his card provides, 

May include but are not limited to actions taken by the operator to prevent or 

correct hazardous conditions or practices [and may include that] [o]perators are 

required to be on alert for conditions and practices in the mine that affect the 

safety or health of miners and to take the steps necessary to correct or prevent 

hazardous conditions and practices. 

 Tr. 487. 

This was the predicate for Respondent’s counsel to point out that Tinney told the 

inspector that he did perform a preshift and direct the shuttle car operator to clean it up. Tr. 488. 

As noted, Postalwait did not see this as mitigation because he believed that the belt was turning 

in the accumulations when Tinney did his exam. Tr. 488. 

 Turning to his unwarrantable failure (UWF) designation, Postalwait again referred to his 

summary card when contemplating that designation. He considers it an UWF when “on the 

aggravating conduct. And I look at that chart and go down through it and see if any of that 

criteria is there.” Tr. 489. In a sense, Postalwait viewed it as indifference, not rising to the level 

of intentional misconduct. He characterized it as indifference because the condition “should have 

been obvious to anybody. That there should not be no indifference in there. Anybody should 

have been able to seen it. Even the most prudent miner walking through there should have seen 

that, not only just an examiner. [Preshift] examiners have a higher standard.” Tr. 491. 

 Postalwait also believed the mine operator displayed a serious lack of reasonable care 

with regard to Order 8061991, but not reckless disregard, nor intentional misconduct. Tr. 491. 

For the same reasons, he felt that indifference was present, as the condition was there yet 

examiner Tinney failed to call it out, failed to put his DTIs up, and failed to shut the belt down. 

The Court notes that, by this credible testimony, the inspector identified not one, but three 

failures. Again, citing the same rationale, the inspector believed the mine was guilty of a serious 

lack of reasonable care regarding 8061992. 

 On re-direct, the Secretary revisited the inspector’s rationale for his determining if there 

were mitigating circumstances. This occurred because, during cross-examination, the inspector 

38 FMSHRC Page 2654
did not read the entirety of such circumstances. Completing that reading, from R’s Ex. 11, the 

inspector continued, 

Operators are required to be on alert for conditions or practices in the mine that 

affect the safety or health of miners and to take steps necessary to correct or 

prevent hazardous conditions or practices. The mine operator or contractor might 

withdraw equipment, personnel and/or immediately proceed to correct the 

violation, but none of these actions taken after they have been cited alters the 

negligence evaluation made by the inspector when the violation was cited. 

Tr. 496. 

Thus, the point was made that mitigating efforts does not refer to miners or hourly 

employees or subordinates taking such steps, but rather to management. Tr. 497. Further, the 

inspector stated that, new or seasoned, the responsibilities of the preshift examiner are the same. 

Tr. 498. Accordingly, neither the inspector, nor this Court, viewed Tinney’s newness to the 

position as a mitigating factor. Last, regarding the presence of dust on accumulations, in 

response to the questions asked by Respondent on that point, the inspector expressed that rock 

dust on an accumulation shows that it has been there longer. Tr. 498. 

 Justin Tinney then testified for the Respondent. Tinney, who is now 35 years old, is a 

1999 high school graduate. He received his mine foreman’s card in 2014 and he has a mine 

rescue certification. Tr. 510. He has been employed in mining since 2008 and became a section 

foreman at Loveridge in September 2014. Tr. 512. Tinney informed the Court that he had been a 

preshift examiner since September 14th and the call from inspector Postalwait to him was made 

on October 21, 2014. Tr. 516. Tinney stated that the mine had been running coal on his shift that 

day, which was the midnight shift, on October 21st. Shown the P and D report,29 which is the 

production report, Gov. Ex. 14, Tinney identified it as his report. Tr. 517. His October 21, 2014 

production report shows that they mined 27 feet, which Tinney described as not being a large 

amount. Tr. 517. He believed this was the first shift for which the belt line had been in place. 

Shown his preshift and on-shift exam for that same day, Gov. Ex. 9, he stated that his preshift 

was performed between 5:00 and 7:00 a.m. 

 According to Tinney, during his preshift he saw spillage at the tailpiece, where the mine 

was “using the shuttle car as a feeder, at the tailpiece.” Tr. 522. He told the shuttle car operator to 

clean it up. Tr. 522. Tinney stated that he saw only spillage and no coal turning around the roller. 

Tr. 523. He heard nothing strange either. Tr. 523. He did not turn off the belt because there was 

 

                                                             29 No witness explained the “D” for that P and D report, but Respondent’s counsel 

offered, without objection that the “D” refers to “delay.” Tr.576. 

38 FMSHRC Page 2655
no danger and it only needed some shoveling. Tr. 523. There was only one shuttle car operator at 

this location.30 

 Tinney stated there was no need to shut down the belt, contrary to Postalwait’s assertion, 

because “there was no imminent danger at that time.”31 Tr. 525-26. He stated he would have shut 

the belt off if there was an accumulation in the roller. Tr. 526. According to Tinney, he denied to 

Postalwait that he saw the same conditions as the inspector. Rather, he stated that Postalwait 

asked about his DTIs. Tinney told the inspector that he did preshift the belt, but that there was no 

date board at the tailpiece, and he told Postalwait, “I don’t know where I put it.” Tr. 527. He also 

told the inspector that he found some “spillage at the tailpiece, where we was dumping.” Tr. 527. 

The inspector asked why he didn’t put that in the book, and Tinney responded that it wasn’t a 

violation as “it wasn’t rolling in it or anything like that.” Tr. 527-28. As to whether the inspector 

asked him if anything was turning in the tailpiece roller, Tinney answered, “Not that I - - not that 

I remember.”32 Tr. 528. Tinney also claimed that the inspector stated that he believed Tinney’s 

claim, but advised him that he still had to issue a violation. Tr. 529. However, displaying another 

inability to recollect, Tinney could not recall if the inspector asked why he did not shut off the 

belt. Tr. 529. Tinney stated that he told the shuttle car operator “to shovel at the tailpiece.” Tr. 

530. 

 Referring to the other area cited, the accumulation of combustible material along the inby 

rib, inby the 24D overcast, this was also an area that Tinney would have preshifted. One can 

walk on either side of this area of the belt, but one side, the one next to the rib, is a tight side. Tr. 

532. Having another memory issue, Tinney, who, by any measure is still a young man, stated he 

didn’t remember ever seeing the condition. Tr. 532. Shown Gov. Ex. 12G, Tinney expressed 

that, to him, the picture looked like coal, and that “[w]e rock dusted over [the] accumulation.” 

Tr. 533. As Tinney said that he saw nothing remarkable, ostensibly his opinion of the photo 

                                                             30 Respondent’s attorney suggested the following through a leading question: “So you 

only have one shuttle car operator. Most of the other -- so is it possible that when another shuttle 

car operator comes to the shuttle car operator that is located -- I'll call it number one -- at the 

tailpiece, they have to first dump onto that shuttle car.” Tinney agreed. Tr. 524. He also agreed 

there could be spillage from that, “Oh, yeah, you have spillage from the front, if that guy's not, 

you know -- if he's dumping it and the guy -- because it's got to be -- it's a chain reaction. The 

guy's that's on the feeder, he's got to be bumping his conveyor, his chain, as that guy's dumping 

onto him, or it will overflow in the front.” Tr. 524-25. In the Court’s view, this assertion, offered 

to support the claim that the accumulation occurred after Tinney’s preshift was performed, being 

based on speculation, is not credible and is also dispelled by the amount of material that was 

present. 

31 Unless one were to view Tinney’s remark as simply misspeaking, his equating the need 

to shut down the belt only with the presence of an imminent danger represents a serious 

misunderstanding of the circumstances when there is a need to take action. Viewed in the context 

of the entirety of his testimony, the Court does not view Tinney’s remark as merely misspoken. 

32 From a credibility standpoint, the Court finds Tinney’s failure to remember such an 

important issue surprising. 

38 FMSHRC Page 2656
would be about a condition he never saw during his preshift. Accordingly, his testimony about 

the photo, being speculation, is of no probative value. This was noted by the Court. Tr. 533-34. 

Tinney also could not recall which side of the rib he walked. Tr. 535. 

Again, Tinney maintained that he didn’t note the accumulation in his preshift, Ex. 9, 

because it wasn’t a violation. He then stated that he did put the condition in his on-shift, although 

the testimony is unclear on this point, as Respondent’s counsel’s question began with a 

hypothetical about what Tinney would do and then inferentially asked if he actually did put the 

condition in his on-shift. Tr. 536. The second page of Ex. 9 repeats Tinney’s earlier testimony 

that he told the shuttle operator to clean up the ‘spillage.’ However, Tinney’s reading from that 

exhibit, refers to a tailpiece accumulation, not spillage, “Location and tailpiece, where you've got 

haul roads -- which are dry, and actually taking water. Tailpiece accumulation under tail roller. 

And Action Taken, instructed shuttle car operator to clean.” Tr. 537 (emphasis added). 

Further, at the first page of his preshift report, at item number 2, “Location, Violations 

and Action Taken, it states: “Tailpiece accumulation on tail roller.” Tr. 537 (emphasis added). 

Making matters worse, Tinney admitted he put that descriptive term in his preshift report when 

he came to the surface. Tr. 537. Tinney also admitted that he added that information after 

speaking with inspector Postalwait. Tr. 538. Jeremy Devine asked Tinney about this and told 

him, “You know what we got to do.” Tr. 538. Devine told him he couldn’t put that in his 

preshift, but if Tinney had told the shuttle operator to clean it up, it was to be noted in Tinney’s 

on-shift. Tr. 538. Tinney asserted this was due to his inexperience. Tr. 538. Further, he agreed 

that he put the information in both the preshift and the on-shift report. Tr. 538. 

 Tinney was then asked about the production report, per Gov. Ex. 14, and the delays 

recorded that day. Regarding the 5:50 to 6:20 notation, Tinney stated that the last shuttle car was 

loaded at 8:45 a.m. on October 21. Tr. 540-41. Among other items related to the delays, Tinney 

stated that at 6:35 a.m. to 7:00 a.m. they were cleaning the tailpiece and the shuttle car was still 

dumping on it at that time, but then it was suggested that he stopped everything in order to clean 

the tailpiece. Counsel for Respondent suggested, “[s]o someone told you that they were cleaning 

the tailpiece and then you had to put it in your production report.” Tinney responded, “Yes, 

ma’am. Well, I mean I’m not - - I can’t remember exactly, but that’s usually how it happens.” 

Tr. 544 (emphasis added). Asked, “[d]o you recall them cleaning up the tailpiece?” Tinney 

responded, “Like I said, it’s been so long ago.” Tr. 544. He also could not recall when he 

finished his preshift examination. Tr. 545. Tinney, using the time frame when he would have 

done his preshift and comparing that to the time the inspector issued the violation, calculated that 

it was issued some 3 hours and 15 minutes after his preshift, thereby suggesting that the 

condition could have developed long after his preshift, because dumping was still occurring at 

the tailpiece. Tr. 545-46.

Tinney stated there was no feeder at this location. Tr. 547. As noted, in situations 

where there is no feeder, a shuttle car dumps directly onto the tailpiece. Tr. 554. He also 

affirmed, in response to questions from Respondent’s attorney, that accumulations can 

occur within a matter of seconds and that the skills of shuttle car operators will vary. Tr. 

 

38 FMSHRC Page 2657
548. In conflict with Postalwait’s testimony, Tinney stated that he did put his DTI on the 

24D transfer under the main line, but could not recall if he put them at the tailpiece. 

Tr. 549. 

 Upon cross-examination, Tinney admitted that he was trained as a section foreman and 

that his training included how to record information in the preshift records. Tr. 552. Tinney also 

admitted that he is responsible, in part, for the safety of the oncoming shift and that he is trained 

to look for accumulations of coal and other combustible materials. Tr. 553. 

Tinney continued to distinguish spillage from an accumulation in that the former “just 

happens” but the later involves something that’s been neglected. Tr. 555. Tinney acknowledged 

that he was responsible for the belt line on the 24D, as a foreman and also as a preshift examiner. 

Yet, while admitting that he is responsible for both sides of the belt line, he didn’t know how 

long it took to do the preshift that day, how long it took him to walk the line, nor which side of 

the belt he walked. He also admitted there was coal at the tailpiece roller and underneath it. Tr. 

557-58. Tinney could not recall if the spillage was on both sides of the tailpiece. Nor could he 

state the amount of coal he saw at the tailpiece during his preshift. Tr. 558-59. He could not 

recall when, during the 5:00 to 7:00 am preshift, he told the shuttle operator to clean up clean up 

the material nor, as noted, did he follow-up to see if anyone had shoveled the tailpiece. Tr. 560-

61. Further, at 7:10 that morning, when he called out his preshift exam to the surface, the only 

thing he mentioned was the E car needing wedges and headers. Tr. 562. Later, as noted earlier, 

under Violations, at line 2, he put tailpiece and listed “Accumulation at tail roller.” Tr. 562 

(emphasis added). 

Significantly, when it was put to him whether inspector Postalwait asked him if he saw 

the tailpiece roller turning in the coal accumulations, Tinney responded, “I don’t remember.” Tr. 

565. Tinney admitted that he was disciplined as a result of the inspector’s orders being issued, 

receiving a written warning and lost time. The discipline was for not following up and not 

checking the tailpiece at the end of his shift. Tr. 566. Upon questioning by the Court, Tinney 

denied ever seeing any conditions like those depicted in photos, Ex. 12A and 12B. Tr. 567. Upon 

additional questions by the Court, regarding Gov. Ex. 9, on page 2, item 2, Tinney confirmed 

that reflects his handwriting where it records, “tailpiece accumulation under tail roller, and that 

on the first page, and where it also lists “tailpiece accumulation at tail roller. It is noted that while 

Tinney admitted that he distinguishes between accumulations and spillage, on both those items 

he recorded the descriptions as an “accumulation,” not “spillage.” Tr. 571. 

 However, on re-direct from Respondent’s counsel, Tinney stated that, before he spoke 

with the attorney, he thought of the terms as the same thing. Tr. 572. With that said, Tinney then 

repeated that what he observed was “coal underneath the belts, or flakes underneath the belts, 

what we would call it.” Tr. 573. Thus, he fell back to his assertion that there was no grinding in 

the coal. Tr. 574. The Court then asked, if the matter was merely spillage, why he was 

disciplined. Tinney stated the discipline was for failing to follow-up after he did the preshift, that 

is, for not checking the tailpiece at the end of the shift. Once the (d) order had been issued, 

Tinney’s shift foreman asked him whether he made sure the material had been shoveled up. 

Tinney told the shift foreman, “I don’t remember.” Tr. 575. Still, Tinney maintained that the 

material could have resulted from somebody else dumping at the end of the shift. Tr. 575. 

38 FMSHRC Page 2658
Michael Savasta also testified for the Respondent. He has worked in mining for 11 years, 

and has been at the Loveridge Mine since March 5, 2007. Tr. 582-83. He has had foreman’s 

papers since 2014. Tr. 580. In 2014, he also became a salaried employee, as a “safety inspector.” 

Tr. 584. He traveled with Inspector Postalwait on October 21, 2014. They traveled to the 24D 

section, which was a new section. Savasta stated that he did not hear any grinding or noise until 

they got to the No. 3 entry, where the tailpiece was located. Tr. 588-89. Savasta acknowledged 

that the inspector may have mentioned something about hearing noise, but Savasta did not know 

exactly where they were in the No. 3 entry. Savasta asserted they were about 20 to 30 feet from 

the tailpiece when the inspector mentioned the noise but that no coal was being mined at that 

time. Tr. 589-90. The last shift to have mined coal was the midnight shift; this was also the shift 

where mining started on October 21. Tr. 591. Savasta stated that when the inspector saw the 

tailpiece, he informed him that he would issue a violation and, after speaking with Tinney, that 

two orders would be issued. Tr. 592-93. 

Savasta also took issue with the inspector’s measurements, contending that he didn’t 

“think they [were] 100 percent accurate.” Tr. 593. He had doubts about the inspector’s use of his 

walking stick and whether his measurements took into account the soft bottom and he also 

criticized that only the longest and widest measurements points were taken. Tr. 594. As with 

Tinney, Savasta asserted that spillage, not an accumulation, was involved. Tr. 597. Savasta also 

had issues with the second condition listed in the order, the accumulation at the overcast, stating 

that there wasn’t five and a half feet between the rib and the overcast stairs. Tr. 599. Savasta did 

see material along the rib, but didn’t know if the correct term was accumulation or spillage, 

adding that it was covered up in rock dust and therefore inert. He believed the correct term was 

spillage for the material at the tailpiece. Tr. 600. 

Shown Gov. Ex. 12B, a photo, Savasta stated he had never seen it before, although he 

asserted that it looked like the conditions at the tailpiece. Tr. 600-01. Savasta described the 

condition as follows: 

The belt was running, so the roller was turning. I don't know if the entire roller 

was in contact with the coal. But it was not only coal, there was rock and mud 

mixed in with it. It was damp to wet. There was nothing hot, there was not 

smoldering, no smoke. 

Tr. 601. 

He did not know how long the condition had been present. Tr. 601. He also stated that the 

material was wet or damp, asserting that he touched it. Tr. 602. Therefore, Savasta’s description 

conflicted with Inspector Postalwait’s. Savasta did acknowledge that the inspector was quite 

unhappy about the condition, admitting, “[h]e was irritated, you know. He said that he 

had put us on notice and he [was] tired of seeing this condition, you know, in our mine. So he 

was -- like I said, he was a little irritated.” Tr. 603. 

 Upon cross-examination, Savasta agreed that he helped the inspector take the 

measurements and that he didn’t make any measurements of his own. Tr. 609-10. Nor did 

Savasta take any notes that day, explaining that he was “new” to the safety department. Tr. 610. 

38 FMSHRC Page 2659
As to his doubts about the accuracy of the inspector’s measurements, Savasta conceded that the 

tailpiece and the entire belt sits on the same fire clay, soft bottom, and that equipment was not 

sinking in mud or anything similar. Tr. 610. Savasta also admitted that his primary objection 

was that an order was issued and less so on the question of whether it was a violation, stating, 

“you know, it could have been maybe a valid citation.” Tr. 612 (emphasis added). Savasta also 

agreed that the coal was in front of the tailpiece, inby the guarding, that it was on both sides of 

the tailpiece and underneath it to, and that at least some of it was in contact with the moving 

tailpiece roller. Tr. 613. To his mind, Savasta distinguished an accumulation from spillage in 

that an accumulation exists when material is left there and mining continues without addressing 

it. Tr. 615. He believed that, in this instance, it had not just been left there and mining was not 

occurring when they arrived at the site of the condition. Tr. 615. Savasta agreed that no one was 

cleaning up the material when they arrived at the scene of the violation. Tr. 617. 

 Shown Exhibits 22A through 22G, photographs, Savasta agreed that he took those photos 

on October 21, 2014. Tr. 618. Savasta agreed that photo 22A shows the accumulation cited by 

the inspector at the overcast and he agreed that the accumulation along the inby rib was dry. Tr. 

619. However, he added that it had rock dust on it and that the condition could have come from 

rib sloughage. Tr. 619. Shown 22B, a picture of the cited tailpiece, Savasta stated it depicts the 

area but after it had been shoveled. Tr. 620. This occurred as part of the required abatement. As 

with Tinney’s memory lapses, he could not remember how many men were involved with the 

clean-up, nor how long it took. Tr. 621. Photo 22D shows the “spillage” that was then shoveled 

onto the belt. Tr. 622. For photo 22F, he agreed that it depicts the tailpiece roller in contact with 

the coal, but Savasta again added that rock and mud were in that mix as well. Tr. 623. Exhibit 

22G, similarly shows two rounded mounds of material that consisted of coal and rock. Tr. 624. 

In the face of all those photos, Savasta still maintained that they depicted only spillage. Tr. 625. 

Discussion 

 Both Orders 8061991 and 8061992 are affirmed. The violations were established and 

they were the result of unwarrantable failures. 

 Unlike the single order discussed in WEVA 2015-651, No. 8061842, the two orders 

involved with this docket, WEVA 2015-762, list the alleged violations as “significant and 

substantial.” As recently reiterated by the Commission, 

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: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

Sec’y of Labor v. Cam Mining, LLC, 2016 WL 5594251, *4-5 (FMSHRC) (Aug. 12, 2016) 

(citing Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. 

38 FMSHRC Page 2660
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)). 

As set forth in the findings of fact, Tinney called out his preshift at 7:10 a.m. When the 

inspector was first alerted to the condition by the sounds he heard, Savasta and Cabo agreed they 

heard the sounds too. When they came upon the accumulations, the conveyor belt was running. 

Savasta then turned the belt off and the inspector took photos of the condition he found; the 

tailpiece was gobbed out with the tail roller and conveyor belt turning in accumulations. The 

extent of the accumulations was photographed and measured by the inspector and those 

accumulations near the tailpiece roller informed him that it was generating heat from the friction 

where the tailpiece roller and conveyor belt were turning in those accumulations.33 Thus, there 

was combustible material, and the friction heat source present. Because it was drying out, and 

there was an ignition source, the “fire triangle” was present, with the hazard created being fire 

and smoke. 

Tinney saw the accumulations while doing his preshift exam, but that he did not call it 

out in his preshift report, nor did he shut the belt off. Tinney was part of management; his 

failures were twofold and both were significant. He did not record DTIs and then fabricated his 

preshift report after the fact. The accumulation violation was appropriately marked as high 

negligence, because there were no mitigating circumstances and there had been several 75.400 

violations at the mine, with Postalwait having previously verbally warned the mine about this 

and issuing 75.400 violations. 

 The semantic jostling about whether the piles of coal should be tabbed as spillage or 

accumulations is a misdirection.34 Clearly, there were piles of coal found and documented and, 

                                                             33 Although Postalwait also found a second accumulation in the belt entry, the Court’s 

determination rests primarily on the first area cited at the tailpiece, although the inspector’s 

measurements at the second accumulation show that it was anything but insignificant. 

Both sites constituted accumulations. The second accumulation was not due to rib 

sloughage, but was more likely attributable to material left behind by not initially cleaning up 

after the area was mined. Regardless of the origin, it was an accumulation for which corrective 

action was required. 

34 The Court is aware that some cases have drawn a distinction between spillage and an 

accumulation. “Section 75.400 prohibits accumulations, not mere spillages. See Old Ben Coal 

Co. (Old Ben II), 2 FMSHRC 2806, 2808 (Oct. 1980). The Commission stated in Old Ben that 

“we accept that some spillage of combustible materials may be inevitable in mining operations. 

No bright line differentiates the two terms. Whether a spillage constitutes an accumulation under 

[30 C.F.R § 75.400] is a question, at least in part, of size and amount.” Id. An accumulation 

exists if “a reasonably prudent person, familiar with the mining industry and the protective 

purpose of the standard, would have recognized the hazardous condition that the regulation seeks 

to prevent.” Utah Power & Light Co., 12 FMSHRC 965, 968 (1990), aff’d, Utah Power & Light 

 (continued...) 

38 FMSHRC Page 2661
for one of the two, that coal was turning in tailpiece roller and conveyor belt. As no coal was 

running past 5:00 a.m. on that shift, the inspector properly concluded that the same conditions he 

found were there at the time Tinney’s preshift exam was made. Thus, the production reports and 

Tinney’s admission to him about the presence of the accumulation also supported the inspector’s 

findings. Further, the conditions cited in the order were obvious because they could be viewed on 

either side of the belt and the condition generated sound. 

A reasonably prudent person familiar with the mining industry and the protective purpose 

of Section 75.400 would have recognized that the extensive size and amount of float coal dust 

and loose coal at the tail roller and feeder were accumulations and not mere spillage. Therefore, 

the Court finds that Section 75.400 was violated. 

Postalwait’s conclusion that it was an S&S violation, based as it was on the condition and 

the failure to deal with it properly, made a fire reasonably likely, with smoke inhalation and 

burns as the expected injuries from a fire. 

As for the inspector’s unwarrantable failure designation, Postalwait based that on the 

aggravating conduct involved and the associated indifference to the condition, which he based 

upon the presence of the condition, and its obviousness. The Court finds Tinney to be less 

credible than the inspector, both by his words and his deeds. That the inspector was upset by the 

condition he found demonstrates the reliability of his recounting. People do not often act upset 

without reason; the inspector’s behavior and reaction were consistent with the conditions listed 

in his order. 

Penalty assessments for Orders No. 8061991 and 8061992. 

As noted at the outset of this decision, Order No. 8061991, a Section 75.400 

accumulations violation, was specially assessed at $30,200, as compared to the $6,115 a regular 

34 (...continued)

Co. v. Sec’y of Labor, 951 F.2d 292 (10th Cir. 1991); see also Old Ben II, supra, at 2808 (“[T] 

hose masses of combustible materials which could cause or propagate a fire or explosion are 

what Congress intended to proscribe.”); Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558 

(D.C. Cir. 2012). The Commission has expressly rejected the argument that “accumulations of 

combustible materials may be tolerated for a ‘reasonable time.’” Old Ben Coal Co. (Old Ben I), 1 

FMSHRC 1954, 1957-58 (Dec. 1979); see also Utah Power, supra, 12 FMSHRC at 968 (Section 

75.400 “was directed at preventing accumulations in the first instance, not at cleaning up the 

materials within a reasonable period of time after they have accumulated”) (internal citation 

omitted); Black Beauty, supra, 703 F.3d at 558-59; Big Ridge, 35 FMSHRC ___, slip op. at 13, 

No. LAKE 2009-377 et al. (June 4, 2013). The Tenth Circuit in Utah Power similarly stated, 

“while everyone knows that loose coal is generated by mining in a coal mine, the regulation 

plainly prohibits permitting it to accumulate; hence it must be cleaned up with reasonable 

promptness, with all convenient speed.” Utah Power 951 F.2d at 295, n. 11.” Sec. v. Big Ridge, 

Inc., 35 FMSHRC 3168, 3175-76 (Sept. 2013) (ALJ) (as in Big Ridge, both orders in this 

decision involved accumulations, not mere spillage). 

38 FMSHRC Page 2662
proposed penalty assessment would have yielded. This is virtually a five-fold increase over the 

regular assessment figure. Order No. 8061992, in a sense the more serious of the two violations 

for this docket because of the action altering the preshift report, was specially assessed at 

$15,900, while a regular assessment would have been $4,000. The Court independently 

concludes that a penalty of $15,900 is fully warranted as to the latter, pre-shift violation because 

of the serious misconduct involved. 

The accumulations violation, however, is a different matter. The Secretary’s post-hearing 

brief urges that the $30,200 specially assessed penalty is justified because the Respondent’s high 

negligence and unwarrantable failure “indicated the need for greater deterrence.” Sec’y’s Br. 28 

(citing Jt. Ex. 2). However, the Court notes that unwarrantable failure and high negligence are 

contemplated within the regular Part 100 penalty process. In large measure, the special 

assessment narrative may fairly be described as an echo of the words employed in the inspector’s 

order. Implicitly recognizing this, the Secretary’s post-hearing argument was left with the need 

for “greater deterrence,” a claim made without elaboration. Id. Upon independently considering 

the statutory penalty, with a focus, albeit not exclusively, on the gravity and negligence, and 

upon considering the prior 75.400 violation affirmed in this decision as a part of the mine’s 

violation history, the Court concludes that a penalty of $18,345, a three-fold increase over the 

regular assessment figure, is warranted. The Court adds that, while the penalties imposed are less 

than the special assessment amounts sought by the Secretary, there can be no doubt that these 

constitute significant civil penalties for these violations. 

Wherefore, it is ORDERED that Consolidation Coal Company pay the Secretary of 

Labor a civil penalty in the total amount of $43,865.00. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution 

Brian P. Krier, Esq., Office of the Solicitor, for the United States Department of Labor, 170 S. 

Independence Mall West, Suite 630E, Philadelphia, PA 19106, krier.brian@dol.gov 

Rebecca J. Oblak, Esq., Bowles Rice LLP, for the Respondent, 700 Hampton Center, 

Morgantown, WV 26505, roblak@bowlesrice.com 

38 FMSHRC Page 2663
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

October 21, 2016 

 

DECISION 

Appearances: Jordana L. Greenwald, Esq., Office of the Solicitor, U.S. Department of 

Labor, Philadelphia, PA, Representing the Secretary of Labor 

Sunshine R. Fellows, Esq., The Levicoff Law Firm, P.C., Pittsburgh, PA, 

Representing the Respondent 

Before: Judge Andrews 

 This case is before me upon a complaint of discrimination brought by Shayne Bungard 

(“Complainant”), a miner, against GMS Mine Repair & Maintenance, (“Respondent”), pursuant 

to § 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c). 

 The Secretary of Labor, on behalf of Bungard, alleges that Bungard was discriminated 

against and his statutory rights were interfered with after asking for safety equipment. A hearing 

was held in Pittsburgh, PA, on January 4, 2016, at which the parties presented testimony and 

documentary evidence. After the hearing, the parties submitted Post Hearing Briefs, which have 

been fully considered. 

STIPULATIONS 

 The parties submitted the stipulations in their respective pre-hearing reports. The 

following stipulations represent those where there is agreement: 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over 

this action pursuant to Section 113 of the Mine Act, 30 U.S.C. § 823. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf of 

SHAYNE BUNGARD, 

 Complainant, 

 v. 

GMS MINE REPAIR & MAINTENANCE, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEVA 2015-793-D 

MSHA Case No.: MORG-CD-2015-13 

Mine: McElroy Mine 

Mine ID: 46-01437/ MVK 

38 FMSHRC Page 2664
2. At all relevant times, GMS was a “person” within the meaning of Sections 3(f) 

and 105(c) of the Mine Act, 30 U.S.C. §§ 802(f) and 815(c). 

3. GMS employed Complainant Shayne Bungard. 

4. At all relevant times, Complainant Bungard was a “miner” within the meaning of 

Section 3(g) of the Mine Act, 30 U.S.C. § 802(g). 

See GMS Pre-hearing Report at 4, and Sec’y Pre-hearing Report at 8, and GMS Post-hearing 

Brief at 3-4. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact are based on the record as a whole and my careful observation of the 

witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into 

consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, 

in each witness’s testimony and between the testimonies of the witnesses. In evaluating the 

testimony of each witness, I have also relied on his or her demeanor. Any failure to provide 

detail as to each witness’s testimony is not to be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not 

required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). 

Shayne Bungard worked as a miner at McElroy Mine for GMS Mine Repair from 

October 31, 2014, until he was suspended and fired on January 16, 2015. Tr. 34, 35. At the time 

of the hearing, Shayne Bungard had two years of undergraduate prerequisites to become a 

Registered Nurse (RN). Tr. 30-31. He had left college and decided to work at the coal mines 

because it was the best paying job in the area. Tr. 31. In high school, Bungard worked various 

jobs to support his mother, including work assisting a contractor, work for a lawn care company, 

work as a lifeguard, and work at a truck stop. Tr. 31-32. 

In order to earn an underground coal mine card for West Virginia, Pennsylvania, and 

Ohio, Bungard attended an 80-hour class in Glen Dale, WV. Tr. 32. At the conclusion of the 

class, Bungard passed the Red Hat/Apprenticeship Miner test, making him eligible to become a 

miner. Tr. 32. In this class, Bungard learned that rock dust contains silica, which can clot one’s 

lungs, and can be more harmful than breathing coal dust. Tr. 33. He also learned that miners had 

to be presented a respirator whenever they needed one. Tr. 34. It was during this class that a 

recruiter made Bungard aware of available work with GMS Mine Repair. Tr. 32. 

Bungard began working as a general laborer on the steel set crew on belt lines at the 

Blakes Ridge portal of McElroy Mine on October 31, 2014. Tr. 34-35. He typically worked 48 

hours per week, at $15 per hour for the first 40 hours and eight hours at overtime pay. Tr. 34-35. 

On Bungard’s first day, he was provided a radio, battery, cap light, and a reflective vest. Tr. 36. 

He was not provided with a respirator, and he was not told how to procure one. Tr. 38. Bungard 

was never given direction that if he wanted a dust mask during his shift he was responsible for 

having it on his person before he went into the mine. Tr. 90. He had heard from word of mouth 

38 FMSHRC Page 2665
that if he wanted a dust mask he had to ask the shift foreman.1

 Tr. 90-91. He was told during the 

refresher training that he could have a dust mask whenever he wanted one. Tr. 91. 

Bungard testified that in his experience, it was a frequent occurrence to get “dusted out” 

while working underground. Tr. 44. In previous instances of being dusted out, the crew would sit 

out the event, and the crew leader, Jamie McKelvey, would check dust levels every five to ten 

minutes. Tr. 44, 105. Bungard’s fellow miner, Joseph Gonchoff, testified that one’s vision 

becomes limited when it becomes dusty. Tr. 104. Bungard’s crew leader, Jamie McKelvey, 

testified that in a “dust out” the dust becomes so bad that one cannot see 20 feet in any direction.2

Tr. 135. Dust was a daily occurrence. Tr. 105. 

Gonchoff testified that he experienced a stark difference between how dust is treated in 

the context of training and how it was treated in the context of work: “Ever since we started 

getting training for mine, everyone preaches black lung, rock dust is worse than coal dust, and 

from day one you are preached never work in dust, and then you start working at the mine and it 

 

 1

 Mine Site Coordinator Michael Blackburn testified that the protocol for getting safety 

equipment was that a miner would have to ask for any safety equipment from their shift foreman 

15 minutes prior to their shift. Tr. 160. He said that he always recommended to all new miners to 

always ask for a paper mask before the shift because one can never know when it will become 

dusty. Tr. 160. 

Corporate Safety Director for GMS, Susan Bealko, testified that dust masks were “readily 

available.” Tr. 282. Bealko’s department would deliver the dust masks to the coordinators, who 

put them in their lock boxes, and they give them to their crew leaders to give to employees as 

needed. Tr. 282-283. If the environment is dusty, and a miner does not wear a dust mask, he 

would get reprimanded. Tr. 282. 

Bealko testified that “there is a remote chance that it is going to get dusty, and you have 

to know what job you are doing. If you are going to be in a dusty environment, you take your 

dust mask with you. You should have dust masks with you, and the crew leader should.” Tr. 285. 

2

 Jamie McKelvey worked for GMS from October 2010 through April 2015. Tr. 130-131. 

He worked as a laborer for two years and then a crew leader for two years. Tr. 131.He worked 

primarily at the McElroy Mine, but occasionally worked at other Murray mines. Tr. 131. He 

described his responsibilities as crew leader “to make sure the work got done and it was done 

safely.” Tr. 131. He has certificates for underground mining. Tr. 132. McKelvey’s job with GMS 

was his first underground mining job. Tr. 132. After being laid off from GMS, McKelvey went 

on unemployment for one month and then returned to construction work building bridges and 

maintaining roads. Tr. 132. 

38 FMSHRC Page 2666
seems like it is not that important, that you need to get the job done.”3

 Tr. 106. Gonchoff had 

talked to McKelvey about the dust problems, but did not say anything to the shift foreman, 

Anthony Brown, because he was afraid of being fired from the job.4

 Tr. 106-107. McKelvey 

testified that he didn’t say anything to Brown, because he feared that Brown would not have 

listened to him and may have fired him. Tr. 137-138, 142. Gonchoff described the situation as 

there being a “feeling that if you don’t do what you are told, they will find a way to fire you.” Tr. 

106-107. Gonchoff described GMS as “all about getting your footage all day every day.” Tr. 

125. Gonchoff listed an employee who was fired for not making his daily footage. Tr. 126. The 

daily footage was eight feet per day on both sides of the belt for a total of 16 feet. Tr. 127-128. If 

one worked hard all day, that footage could be completed, but if breaks were required because of 

dust, it was not possible. Tr. 128. 

On January 16, 2015, Bungard worked the afternoon shift, which began at 4:00 pm. Tr. 

40. He was working in between crosscut 1404 and the drive, cleaning ribs alongside a Black Hat 

on the tight side of the belt line.5 Tr. 39. Their task was to shovel the ribs with handheld tools,

such as shovels, pics, matics, jackhammers, and other tools to clean the area. Tr. 41, 104. With 

him were three other Red Hats (Mitch Tilak, John Glenn Denning, and Joseph Gonchoff), a 

Black Hat (Jeff Hamstead), his crew leader (Jamie McKelvey), and the coverage foreman 

(Chuck Hess). Tr. 40, 102-103. 

At approximately 8:00 or 8:30 pm, it began getting dusty. Tr. 42, 103, 113. Bungard 

described the conditions as appearing like “light snow, you can see it coming, you can feel it, 

basically, in the air.” Tr. 42. He described it being difficult to breathe. Tr. 42. Hamstead 

motioned the crew with his cap light to gather underneath the belt and start heading toward 

crosscut 1404 because the crew was “going to get dusted out.” Tr. 42-43. Everyone from the 

crew, other than coverage foreman Hess, went into the crosscut. Tr. 43. The coverage foreman 

stayed on the belt line. Tr. 43-44. 

The crew sat in the crosscut until McKelvey determined that the dust had cleared. Tr. 

134. They returned to work for approximately half an hour, and then it became dusty again, so 

the crew returned to the crosscut. Tr. 134. They sat in the crosscut for a little while, until foreman 

Anthony “Scott” Brown came and asked what they were doing. Tr. 45, 135. McKelvey 

 3

 Joseph Gonchoff testified at hearing. He worked at the McElroy Mine for GMS from 

June 2014-January 2015, as an underground miner digging and cleaning the belt lines. Tr. 100-

101. At the time of hearing he worked at United Dairy driving a truck. Tr. 100. In January of 

2015, Gonchoff was working the afternoon shift on Jamie McKelvey’s crew. Tr. 101. Gonchoff 

left GMS to work for Murray Energy on January 16, 2016. Tr. 113. Gonchoff continued to work 

at the same mine, but a different portal. Tr. 113. Gonchoff began working for Murray Energy on 

or about January 20, 2015, after working for GMS. Tr. 102. At Murray, Gonchoff worked as a 

general inside laborer. Tr. 102. Gonchoff, along with approximately 120 other workers, was laid 

off at the end of May, 2015. Tr. 102, 113. 

4

 Gonchoff testified that the turnover rate at GMS was high, with “people getting fired 

and brought in every day.” Tr. 112. 

5

 A Red Hat refers to a new miner. A Black Hat refers to an experienced miner. 

38 FMSHRC Page 2667
responded that it was dusty and they were in the crosscut for fresh air. Tr. 135-136. Brown went 

to the belt, came back, and told the crew to get back to work because it was “not that bad.” Tr. 

135-136. 

Brown told Bungard and the others that it was not dusty and they were required to return 

to work. Tr. 45, 105. As the crew walked back to work, Bungard and Gonchoff noticed that it 

was still dusty.6

 McKelvey described the conditions when they returned as not “as bad, but it was 

still dusty.” Tr. 136. McKelvey testified he would not have made the same decision as Brown 

because “it was still dusty and you don’t want to breathe it.” Tr. 136. 

Gonchoff testified that many people in the crew were angry about the dust and did not 

want to return to work in such dusty conditions. Tr. 105. Bungard requested a dust mask because 

he felt that he needed a dust mask in order to breathe in the conditions they were in. Tr. 46, 47. 

Bungard also recalls hearing another Red Hat ask Brown for a dust mask, but said that he did not 

think that Brown heard him. Tr. 46. McKelvey testified that it was reasonable to ask for a dust 

mask to work in the dusty conditions they encountered. Tr. 138-39. Brown responded to Bungard 

by making Bungard repeat the request. Tr. 46. When Bungard repeated it, Brown replied that it 

would require them to walk out to the surface, to which Bungard assented. Tr. 46. 

Bungard knew from a former crewmember named Eddie Smith that if he wanted a dust 

mask he would have to ask for one. Tr. 62. The dust masks were kept in a cabinet in the shower 

house, and Bungard was never told that he was required to request them at a specific time. Tr. 

62-63. The filters for the dust masks would get clogged, and GMS was supposed to provide 

replacement filters, but Bungard testified that they were often unavailable.7 Tr. 62-63. 

Gonchoff testified that when Bungard asked Brown for a dust mask, Brown told Bungard 

that it was his responsibility to have a dust mask. Tr. 107. Bungard responded by saying that by 

asking for one he was fulfilling that responsibility. Tr. 107. Bungard and Brown began arguing, 

with Bungard on the defensive side, and Gonchoff first assumed they were joking around. Tr. 

107, 118. However, as it escalated and Brown told Bungard that he would take him out of the 

mine, Gonchoff realized that they were not joking. Tr. 107. Brown was pointing, yelling, and 

appeared visibly angry. Tr. 123. 

Brown asked if anyone else wanted a respirator, and one crew member replied that 

Brown should bring everyone respirators. Tr. 107. Before leaving, Brown told McKelvey to take 

the crew back to the crosscut and out of the dust, and that if any workers even take off their 

glasses to clean them they would be written up. Tr. 108. Gonchoff understood that statement to 

 6

 When asked at hearing to rate the dust levels on a scale of 1-10, Bungard rated the dust 

levels at five. Tr. 45. Gonchoff rated the dust levels as a seven or eight on a ten-point scale. Tr. 

109. 

7

 Gonchoff brought his own respirator into the mines until he lost it. Tr. 114-15. He 

repeatedly asked for one but explained that GMS rarely had enough for all employees. Tr.115. 

He would usually request the dust mask before or after the shift, whenever he saw Blackburn. Tr. 

115. Gonchoff complained orally to Blackburn about the company not having a sufficient 

number of dust masks. Tr. 116. Blackburn responded that he was trying to get them. Tr. 116. 

38 FMSHRC Page 2668
be borne out of frustration and Bungard being correct, as well as an affirmation of Gonchoff’s 

belief that they could always find a way to fire them if they wanted to. Tr. 108-09. 

The crew stayed in the crosscut for approximately 15-20 minutes until the dust cleared 

out, and then went back to work. Tr. 109. Gonchoff described the dust being at approximately 

five or six out of a ten-point scale when the crew returned to work. Tr. 109. 

Bungard testified that after walking approximately 10 steps with Brown towards the 

bottom of the belt line, Brown said, “no...never mind, get in the crosscut.” Tr. 47. Brown 

ordered everyone to get into the crosscut. Tr. 47. The crew proceeded into the crosscut, and 

Bungard heard Brown say something that he could not understand over the noise. Tr. 47. 

Bungard told Brown that he would do his work, but that he wanted a dust mask, and that he was 

willing to talk to Mine Site Coordinator Michael Blackburn to get one. Tr. 47. Brown responded 

by saying that if Bungard wanted to talk to Blackburn, they would go and talk to him right then. 

Tr. 48. Bungard grabbed his bag and the two of them started to walk. Tr. 48. Bungard testified 

that Brown’s body language and tone of voice indicated that he was upset about having to walk 

out of the mine for a dust mask. Tr. 48. 

Bungard followed Brown approximately 10-15 feet behind him as they walked out of the 

mine. Tr. 49. Twice during the walk, Brown pointed out dusty belt drives and asked Bungard, 

“do you see any dusters, he was screaming, do you see any dusters.” Tr. 49-50. Bungard 

responded by shrugging and indicating that he did not see any dusters. Tr. 49. Bungard did not 

otherwise engage Brown in conversation during the walk. Tr. 49. In the 20 minutes that it took to 

walk out of the mine, Bungard did not see or speak to any other miners. Tr. 50. 

Bungard and Brown exited the mine at approximately 8:30 or 8:45 p.m., which was in the 

middle of the shift. Tr. 51. The lamp man was in his office when they walked by, but no one else 

was around. Tr. 51. They proceeded to the GMS office, and Bungard sat down as Brown 

attempted to call Blackburn. Tr. 51. The first few calls were unsuccessful, but eventually Brown 

was able to reach Blackburn. Tr. 51. 

Brown placed Blackburn on speakerphone so that Bungard could hear the conversation. 

Tr. 51. Brown told Blackburn that Bungard refused to work and there was dust on the belt line. 

Tr. 51. Blackburn responded by saying “get him the F out of there.”8 Tr. 52. Bungard tried to 

interject, but Brown talked over him. Tr. 52. Brown hung up the phone and said, “well, that is 

that.” Tr. 52. Bungard asked what Brown meant, and Brown responded that Bungard was fired. 

Tr. 52. Bungard asked if he was being fired for asking for a dust mask, and Brown responded 

that “no, you brought it on yourself, wanting to walk out here.” Tr. 52. Bungard told Brown 

several times that “I am just asking for a dust mask, I will go straight back to work, I don’t want 

to lose my job.” Tr. 53. Brown told Bungard that he was the foreman and he determined that 

there was no dust present. Tr. 53. During this conversation, Bungard was sitting and Brown was 

standing over him pointing in his face so that Brown’s finger was within two inches of 

Bungard’s face. Tr. 53-54. 

 8

 It is unclear from the testimony whether witness used “F” in lieu of “fuck” out of a 

desire to not swear during a hearing, or if “F” was used at the mine. 

38 FMSHRC Page 2669
Following this exchange, Bungard said that he would go sit in his car because he had 

driven a fellow coworker to work that day. Tr. 54-55. He handed his cap light and SCSR back to 

Brown and said “see you later.” Tr. 55. Bungard testified that he was approximately 10 feet away 

from Brown and did not say this in a threatening way. Tr. 94, 96. Brown responded, “oh, you 

will see me later,” and Bungard said that Brown then became belligerent. Tr. 55. Brown threw 

his hardhat down, took off his belt, and said, “you will see me right the F now.” Tr. 55. Bungard 

asked Brown what he meant. Brown responded, “if you want to fight me, you will fight me right 

now.” Tr. 55. Brown’s face was red, and he was yelling. Tr. 56. Bungard responded, “okay, well, 

you can hit me right here on my property if you want to, go ahead.” Tr. 55. Bungard testified that 

he said this because he thought a camera might catch the incident. Tr. 55-56. Brown responded 

that he would not hit Bungard where they were standing, and said they could fight at Brown’s 

truck. Tr. 56. 

Brown walked outside and began taunting Bungard saying, “come on, come outside.” Tr. 

57. Bungard replied that he would not go out and he started to walk towards the break room. Tr. 

57. Bungard went to the lamp room to find a phone, and he asked the lamp man if he could use 

the phone. Tr. 57-58. The lamp man told Bungard to call the supervisor, Michael Blackburn. Tr. 

58. Bungard called two to three times and left a message. Tr. 58. He never received a call back. 

Tr. 58. Bungard proceeded to get his belongings from his locker and went to wait in his car. Tr. 

58-59. 

After the shift, when the crew was walking out of the mine, one of the union guys by the 

bus garage told them that they needed to call MSHA’s 800 number because Brown had fired 

Bungard and tried to fight him in the parking lot. Tr. 110. Gonchoff felt that it was odd for a 

member of the union to offer advice to contractors, because typically union members do not like 

contractors, and took it as evidence of the truth of what was being said. Tr. 110-11. Gonchoff 

relayed the message to Bungard. Tr. 126. 

 

Gonchoff and the other crew-members were then told by the crew waiting to go 

underground that Brown wanted to meet with him in the bathhouse. Tr. 111. Brown told them 

that he “is not a bad guy,” and that he was just going to suspend Bungard. Tr. 111. However 

because Bungard tried to fight him, Brown had to fire Bungard. Tr. 111. John Glenn Denning 

spoke up and said that it was wrong for Brown to fire Bungard for asking for a respirator. Tr. 

111-12. Gonchoff testified that he and the rest of the crew were in agreement with Glenn 

Denning. Tr. 112. Gonchoff stated that this incident with Bungard made him feel that no one 

cared about his safety. Tr. 112. 

After Bungard waited for approximately one to two hours for his coworker in the car, he 

went to the shower house and talked to his crew. Tr. 59. Several crew members told him that 

Brown told them in the shower house that Bungard refused to work, and there was no dust 

present. Tr. 59-60. 

When Bungard left the mine, he understood that he had been fired. Tr. 62. Some time 

later, Bungard was contacted for an exit interview by a woman from GMS. Tr. 63. She told 

Bungard that he was being discharged for insubordination and trying to start a fight with a 

foreman, which he denied. Tr. 63. 

38 FMSHRC Page 2670
GMS Mine Site Coordinator Michael Blackburn testified at the hearing.9

 His 

understanding of what transpired on January 16, 2015, came exclusively from Brown. Tr. 152-

53. Brown left a note for Blackburn that explained that he came across McKelvey’s crew in a 

crosscut and told them to get back to work because the dust had cleared.10 Tr. 153. The note 

explained that Bungard told Brown that it was still too dusty and he needed a dust mask. Tr. 153. 

Brown wrote that he took Bungard outside, and Bungard tried to provoke a fight with him. 

Tr.153-54. Brown wrote that he told Bungard to “go ahead and hit me, I know there is cameras 

here, I know you want to hit me, go ahead and hit me.” Tr. 153-54. Brown then collected 

Bungard’s equipment and told Bungard to go home. Tr. 154. 

At approximately 8:30 am the next morning, after Blackburn read Brown’s note, Brown 

called Blackburn on the phone. Tr. 154, 172. This was the first time that Blackburn recalled 

Brown contacting him about the matter. Tr. 172. Brown also told Blackburn that one of the shift 

foremen said Blackburn wanted a union representative. Tr. 155. Blackburn did not speak to any 

of the shift foremen or anyone from Bungard’s crew about the incident. Tr. 172-73. He spoke 

with McKelvey and Jeff Hamstead the following day. Tr. 173. McKelvey told Blackburn that the 

crew had to take a break because of the dust, until Brown told them that the dust had cleared and 

they had to return to work. Tr. 191. Blackburn testified that McKelvey told him that the dust 

levels were “good enough for us to go back to work.” Tr. 191. 

Blackburn testified that neither he nor Brown had the authority to fire Bungard. Tr. 157. 

Human Resources Director Terry Jackson or General Counsel Mike Thomas had the final say on 

whether to fire someone. Tr. 157, 202. Blackburn filled out the paperwork for a suspension 

pending HR review and a payroll change form, and submitted the forms to Derek Jackson in the 

HR department. Tr. 156, 170. Blackburn testified that he decided to suspend Bungard because 

provoking a fight with a superior constituted insubordination. Tr. 157-158. 

Blackburn testified that he and Brown probably told Jackson about Bungard’s 

provocations and about Bungard requesting a union representative, but not about any issues 

regarding Brown being upset about being asked for a dust mask.11 Tr. 158-159. Blackburn said 

 9

 Michael Blackburn was a truck driver for Super Service at the time of hearing. Tr. 148. 

He worked for GMS from January 2012, through July 2015, as a mine site coordinator. Tr. 148-

49. Blackburn was in charge of the 270 people that GMS employed at the mine, and was 

responsible for making sure they were present at work and performed their jobs. Tr. 149. 

Blackburn also had to submit three to four reports per week to the mine customer that detailed 

every GMS employee’s position at the mine, as well as lists of individuals that were terminated. 

Tr. 149-50. 

Blackburn was laid off from GMS for lack of work. Tr. 149. 

10 Blackburn testified that he did not know what became of the note. Tr. 154, 167-68. 

Blackburn did not provide the note to MSHA inspectors or to company officials. Tr. 169. 

11 Derek Jackson testified that getting the union involved in a matter would not be a 

violation of GMS policy because the union was not a customer. Tr. 255-56. 

38 FMSHRC Page 2671
that Bungard jeopardized up to 270 people’s jobs by asking to speak to a union representative. 

Tr. 159. 

Derek Jackson testified at hearing that he made the final decision to terminate Bungard.12

He had never received training concerning discrimination under the Mine Act and was unaware 

of Section 105(c) of the Act. Tr. 231-233. Tr. 211. GMS did not have a policy in place for how 

to investigate discrimination or harassment. Tr. 245. Jackson reviewed the information that 

Blackburn presented to him. Tr. 211-212. Jackson testified that Bungard had requested a dust 

mask and was brought out by Brown in order to get him a dust mask. Tr. 212. Then, Bungard 

became combative and tried to start an altercation with Brown, and refused to return to work. Tr. 

212. Jackson testified that he tried to reach out to Bungard, but was unable to get a hold of him. 

Tr. 212. Jackson did not speak to anyone on Bungard’s crew or Brown before deciding to 

terminate him. Tr. 244-245. 

Jackson testified that he did not interview any of the people present when Bungard asked 

for the dust mask because he did not believe it was not relevant to the termination. Tr. 246. 

Jackson did not know if Brown provided the dust mask to Bungard or if he tried to send him 

back underground without a dust mask. Tr. 246-247. 

Jackson spoke with Bungard after he made the decision to fire Bungard. Tr. 212. Bungard 

told Jackson that it was Brown who became aggressive towards him, and that all Bungard 

wanted was a dust mask. Tr. 212. 

Jackson testified that he was faced with a choice as to whether to believe Blackburn or 

Bungard. Tr. 212-13. Blackburn had been with the company for several years, and Jackson had 

“faith in the information he was providing me.” Tr. 213. Jackson testified that because Bungard 

did not have proof of the veracity of his claims, he chose not to believe him. Tr. 213. Jackson 

asked Bungard, without offering, if Bungard would be interested in a potential transfer, and 

Bungard declined. Tr. 213. Jackson explained that he asked Bungard about transfer simply to 

satisfy his own curiosity. Tr. 213-14. Jackson described the conversation as “very brief.” Tr. 213. 

He told Bungard that a letter was sent to him, which Bungard had already received, for an exit 

interview. Tr. 213. Jackson sent a letter on January 20, 2015 to the HR Administrator Emily 

Hale, explaining that he had called Bungard and told him that he was moving forward with the 

termination. Tr. 215-216; RX-4. 

Jackson did not speak to anyone besides Blackburn before making a decision concerning 

Bungard’s termination. Tr. 219. He testified that the information he received from Blackburn 

was “clear-cut,” and he didn’t have any contradictory information. Tr. 220. Jackson testified that 

 12 At the time of hearing, Derek Jackson was the Human Resources Director for GMS. 

Tr. 201. He had held this position for approximately two and a half years, and was responsible 

for employee relations, benefits, recruitment, and terminations. Tr. 201. Jackson had a total of 

over 15 years of Human Resources experience, but his job with GMS was his first job in a mine. 

Tr. 208, 231. He had an undergraduate degree in business management and marketing, and a 

Master’s degree in industrialization of Human Resources. Tr. 208-09. Additionally he had two 

professional Human Resources certifications. Tr. 209. 

38 FMSHRC Page 2672
in other instances he has decided not to follow a front-line manager’s recommendation of 

termination. Tr. 221. At the time Jackson made the decision to terminate Bungard, he had not yet 

spoken to Bungard, so all the information that resulted in the termination came from Blackburn. 

Tr. 221. Jackson testified that if he had had the opportunity to talk with Bungard and discuss the 

matter further with Blackburn, such conversations may have made a difference in the ultimate 

decision. Tr. 221-22. 

GMS has a policy regarding probationary employees that evaluations are performed at 30 

days, 45 days, 90 days, six months, and one year.13 Tr. 152. The probationary period is 90 days.14

Tr. 152. Bungard was still in the probationary period. Tr. 152.

Prior to this incident, Bungard had never been subjected to any discipline at the mine.15

Tr. 60. Bungard did not have any issues with Brown or Blackburn prior to the January 16, 2015, 

incident. Tr. 90. He has never been in trouble in any job for fighting, and has never been in a 

verbal altercation with a superior prior to that incident. Tr. 97. Bungard was often chosen by his 

crew leader to accompany him for special tasks. Tr. 61. Bungard felt that the job had been going 

well up until the dust mask incident, and had already interviewed with Murray Energy for a job 

with the mine. Tr. 60-61. He was told that due to the contract between Murray and GMS, they 

were unable to hire him at the time, but that he should continue working with GMS for another 

three months and try again when he was eligible for employment with Murray. Tr. 68. Bungard’s 

career plan prior to his termination was to remain a coal miner at GMS until he could get hired at 

Murray. Tr. 73. 

Bungard had never previously been fired from a job, and he testified that it created a 

great deal of stress for him. Tr. 72-73. After being terminated Bungard performed odd jobs for 

family to make money. Tr. 66. He purchased a lawnmower, blower, and leaf eater for 

approximately $500 for these jobs. Tr. 66. Bungard earned approximately $125 per week 

mowing lawns during this period. Tr. 66-67. Bungard testified that he did not apply for jobs in 

the mining industry because he thought he might be blacklisted, and unable to get a job after his 

 13 Bungard’s personnel folder did not include evaluations for 30 or 45 days, and 

Blackburn testified that it was likely they were not performed on time. Tr. 166-167. Blackburn 

could not recall if these evaluations were performed for Bungard. Tr. 167. 

14 The GMS Employee Policy Manual holds that all new employees are under a 90-day 

probationary period. Tr. 203. If, during this period, it is determined that the employee is not fit 

for the position, the company can fire them. Tr. 203. The Manual further lists 20 actions that can 

result in disciplinary action up to and including termination. Tr. 204. Some result in progressive 

discipline, and some like insubordination or violation of safety rules can result in immediate 

termination. Tr. 204-205. Under the policy, management can take into account all facts of a 

situation to determine what level of discipline is appropriate. Tr. 206-207. Any action that 

requires more than a verbal warning requires the involvement of Human Resources. Tr. 207. 

15 Bungard testified about one incident wherein he complained about having to carry the 

bag of water for the crew for four days in a row. Tr. 61. 

38 FMSHRC Page 2673
termination.16 Tr. 67. Between January and some time in the late summer of 2015, Bungard did 

not make efforts to seek employment beyond the casual employment he was engaged in. Tr. 86. 

Bungard applied for approximately six to eight jobs, mostly as a general laborer, before 

he got his current job. Tr. 69. His first job after being terminated from GMS was at Mineral Lab 

Company, where he worked full time for $10.50 per hour. Tr. 69-70. Bungard worked there for 

approximately one month before he began working at his current job on November 16, 2015, in 

water transfer, where he makes $13 per hour. Tr. 70-71, 85. He worked approximately 40 hours 

per week in the slow period, and expected to work as many as 100 hours per week in the normal 

rotations. Tr. 71. Bungard’s work hours were determined by the rise and fall of gas costs. Tr. 71. 

Bungard was living in a house with two roommates when he was working for GMS. Tr. 

72. After he was fired, he could not pay rent and had to move in with his mother. Tr. 72. At the 

time of hearing, he was living with his father, and helping to take care of him following a stroke. 

Tr. 72. 

Between March and April of 2015, GMS laid off approximately 230-240 people. Tr. 161. 

This was a mixture of black hats and red hats. Tr. 161-62. Blackburn had a meeting with Jackson 

and John Mattingly to decide who was being transferred and who was being laid off. Tr. 180. 

Blackburn created a spreadsheet for each miner. Tr. 183. He did not use any criteria provided by 

Human Resources, but rather his own experiences and information provided by subordinates 

about each employee. Tr. 182. No one that Blackburn recommended for lay off or transfer was 

overruled by Mattingly or Jackson. Tr. 180. 

Some employees were offered transfers to other locations. Tr. 162. These were all Consol 

mines in Pennsylvania, such as Bailey Mine, Enlow Mine, Emerald Mine, Cumberland Mine, 

and BMX. Tr. 162. Blackburn made all decisions concerning who would be offered transfers in 

lieu of layoffs. Tr. 161. First he chose 26 crew leaders for 26 crews. Tr. 162-163. Then he made 

offers to all the Black Hats that wanted the transfer. Tr. 163. Some Black Hats declined the 

transfer because of the pay cut and increased travel. Tr. 163. Then he made offers to some Red 

Hats. Tr. 163. He testified that he based these decisions on attendance, work ethic, and 

performance. Tr. 161. A few dozen miners were also recalled at Marshall County locations. Tr. 

163. 

McKelvey and three other afternoon shift employees were laid off and never returned to 

work. Tr. 181-82; GX-2. Twenty-one afternoon shift employees were transferred or later 

returned to work. Tr. 182; GX-2. 

Jackson’s involvement with the April 2015 layoffs was to meet with the staff and help 

receive their equipment, explain unemployment benefits, and discuss transfers. Tr. 222-23. He 

did not have any responsibility for deciding who would be offered a transfer or job recall. Tr. 

223. Those decisions were made by the CONSOL operations with input from Blackburn or 

Mattingly. Tr. 223. 

 16 Bungard took his coal mine test again so that he could return to working in the coal 

mines. Tr. 71. 

38 FMSHRC Page 2674
There was no policy in place at GMS or written criteria to determine who would be 

transferred instead of laid off. Tr. 242-43. Jackson believed that the field managers like 

Blackburn and Mattingly based their decisions on criteria such as attendance, job performance, 

and ability to lead. Tr. 257. He believed this because he described it as “common sense” and the 

factors that the field managers talked about often. Tr. 257. 

GMS continued to hire after Bungard’s termination, and at the time of hearing had 

numerous job listings for experienced and inexperienced miners. Tr. 254-55. GMS has also held 

numerous job fairs and open interview sessions since Bungard was terminated. Tr. 254. 

CONTENTIONS OF THE PARTIES 

Following the hearing, the Complainant and Respondent submitted briefs and reply briefs 

in support of their respective positions. The Secretary brings both discrimination and interference 

claims on behalf of Bungard, arguing that Bungard engaged in protected activity by requesting a 

dust mask, discussing the issue with Brown, and attempting to involve a representative of 

miners. The Secretary further argues that if Bungard’s actions are treated as a work refusal, that 

too would constitute a protected activity. The employment actions of suspension and termination 

were motivated at least in part by these protected activities. As a result, it argues that Bungard 

suffered both discrimination and interference. 

The Respondent argues that both the discrimination and the interference claims should be 

dismissed. With respect to interference, the Respondent argues that its procedures for obtaining a 

dust mask in no way interfered with Bungard’s rights. With respect to discrimination, the 

Respondent concedes that Bungard engaged in protected activity when he requested a dust mask, 

and that he suffered an adverse employment action when he was discharged. Resp. Brief at 20. 

Respondent argues that there was no causal connection between the protected activity and the 

discharge, and focuses primarily on animus and disparate treatment. Further, Respondent argues 

that even if this court finds that its actions were in some manner motivated by Bungard’s 

protected activity, it would have taken the same actions based on unprotected activity alone. Id.

at 25. 

Respondent argues that even if this Court finds that Bungard was discriminated against, 

he is not eligible for backpay because he did not properly mitigate. Further, he would have been 

laid off for economic reasons in the spring of 2015. The Respondent also encourages the Court to 

summarily reject the Secretary proposed penalties of $25,000.00. 

ANALYSIS 

The Secretary has alleged that the operator’s conduct constitutes both standard 

discrimination and interference, and I will address each in turn. 

1) Discrimination: 

Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged, 

discriminated against, or otherwise interfered with in the exercise of his statutory rights because 

38 FMSHRC Page 2675
he “has filed or made a complaint under or related to this Act, including a complaint notifying 

the operator or the operator’s agent, or the representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a coal or other mine,” or “because of the 

exercise by such miner...of any statutory right afforded by this Act.” 30 U.S.C. 815(c)(1). 

In order to establish a prima facie case of discrimination under Section 105(c)(1), the 

Secretary on behalf of a complaining miner must produce evidence sufficient to support a 

conclusion that (1) he engaged in protected activity, (2) he suffered an adverse action, and (3) the 

adverse action was motivated at least partially by that activity. See Turner v. Nat 7 Cement Co. of 

California, 33 FMSHRC 1059, 1064 (May 2011); Sec'y of Labor on behalf of Pasula v. Consol 

Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d 1211 (3d Cir. 

1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(Apr. 1981). 

The operator may rebut the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by the protected activity. Driessen v. 

Nev. Goldfields, Inc., 20 FMSHRC 324, 328-29 (Apr. 1998); Robinette, 3 FMSHRC at 818 n.20. 

The operator may also defend affirmatively by proving that the adverse action was in part 

motivated by unprotected activity of the miner, and that it would have taken the adverse action 

based on the unprotected activity alone. Driessen, 20 FMSHRC at 328-29 (citing Robinette, 3 

FMSHRC at 817; Pasula, 2 FMSHRC at 2799-2800). The operator bears the burden of proof for 

the affirmative defense. Pasula, 2 FMSHRC at 2800. 

A. Protected Activity: 

The Respondent concedes that Bungard engaged in protected activity by requesting a dust 

mask. Resp. Brief at 20. The Secretary argues that not only was Bungard’s initial request for a 

dust mask protected, but each step he took in furtherance of obtaining a dust mask was also 

protected activity. Sec’y Brief at 13. 

This Court agrees that Bungard’s protected activity did not conclude after the initial 

request for a dust mask. His actions towards procuring a dust mask, from the initial request to the 

attempts to talk with his supervisor, Michael Blackburn, constitute a singular chain of events that 

are protected under the Mine Act. The walk out of the mine with Brown was taken because GMS 

kept the dust masks in a locked cabinet at the surface. Tr. 62-63. That the action took so long was 

the result of GMS’s inefficient and cumbersome protocols for keeping and retrieving dust masks. 

I find GMS Corporate Safety Director Bealko’s testimony concerning the availability of dust 

masks to be self-serving and non-credible. Her assurances that the GMS procedures for 

retrieving dust masks allowed miners to obtain them when necessary was contradicted by every 

miner that testified. Tr. 282-285. Further, her testimony concerning the company’s policy of 

reprimanding miners for not wearing dust masks when the environment was dusty, illustrates that 

she had no sense of the facts on the ground. Tr. 285. The bulk of the credible testimony at 

hearing illustrated an environment where miners were dissuaded from requesting safety 

equipment, even when dust was prevalent and made it impossible to work without such 

equipment. 

38 FMSHRC Page 2676
B. Adverse Action: 

The Respondent concedes that Bungard suffered an adverse employment action when he 

was discharged by Jackson on January 20, 2015. Resp. Brief at 20. However, Bungard testified 

that Brown fired him on January 16, immediately following the conversation with Blackburn. Tr. 

52. No contrary evidence was presented at hearing as to the exchange between Bungard and 

Brown, and this court credits Bungard’s testimony of the events at issue. Bungard was sent home 

on January 16 by Brown, and he never returned to work. Brown told the other crew members 

that he had fired Bungard. Tr. 111-12. The Respondent presented evidence that only Jackson was 

authorized to officially terminate Bungard’s employment. Tr. 157, 202. However, for purposes 

of finding an adverse employment action under the Act, whether Brown suspended Bungard or 

fired him is immaterial; both acts are examples of adverse employment actions. Therefore, I find 

that Bungard suffered an adverse employment action that began when Brown told him he was 

fired on January 16, 2015 to the point when Jackson officially terminated his employment on 

January 20. 

C. Discriminatory Motive: 

The Commission has acknowledged that it is often difficult to establish a Amotivational 

nexus between protected activity and the adverse action that is the subject of the complaint.@

Sec=y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). To 

establish the nexus, the Commission has identified the following indicia of discriminatory intent: 

(1) hostility or animus toward the protected activity; (2) knowledge of the protected activity; and 

(3) coincidence in time between the protected activity and the adverse action. Sec=y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has further considered the disparate treatment of the miner in analyzing the nexus 

requirement. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). It is not necessary, 

however, to establish all four indications of discriminatory intent. For example, where there is 

knowledge of the protected activity and coincidence in time between the protected activity and 

the adverse action, a causal connection is supported. Sec’y of Labor, on behalf of Yero Pack v. 

Cimbar Performance Minerals, 2012 WL 7659706, *4 (ALJ)(Dec. 2012). 

“Hostility towards protected activity—sometimes referred to as ‘animus’—is another 

circumstantial factor pointing to discriminatory motivation. The more such animus is specifically 

directed towards the alleged discriminatee's protected activity, the more probative weight it 

carries.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508, 

2511 (Nov. 1981)(citations omitted). In the instant case, there is ample evidence of hostility or 

animus towards the protected activity. As soon as Bungard made a request for a dust mask from 

Brown, Brown became agitated with Bungard. Tr. 48, 107, 118, 123. Brown then misreported to 

Blackburn that Bungard refused to work, to which Blackburn responded, “get him the F out of 

here.” Tr. 52. Brown told Bungard that he brought his termination onto himself by wanting to 

 

38 FMSHRC Page 2677
walk out of the mine to get a dust mask.17 Tr. 52. Brown then taunted Bungard and attempted to 

engage him physically. Tr. 55-57. Brown then told the rest of the crew that he was planning on 

suspending Bungard for asking for a dust mask, but he fired him for trying to fight him. Tr. 111-

12. 

Jackson’s understanding of the events on January 16 came exclusively from Blackburn, 

and Blackburn’s understanding came exclusively from Brown. Tr. 152-53, 211-12, 244-45. 

Blackburn and Jackson were aware that Bungard requested a dust mask prior to what transpired 

between Bungard and Brown. Tr. 152-53, 212. Blackburn chose to believe Brown without first 

speaking with Bungard, anyone else in the crew, or engaging in any reasonable investigation. Tr. 

172-73. Similarly, Jackson chose to accept Blackburn’s one-sided second-hand account of what 

transpired, and did not engage in any investigation. 

Jackson had a graduate degree and 15 years of Human Resources experience, with two 

and a half years as the Director of Human Resources at the mine, but he somehow knew nothing 

about the Mine Act’s protections of protected activity and its prohibitions against discrimination. 

Tr. 201, 208-09, 231-33. Indeed, it appears that Jackson was not alone in his ignorance towards 

miners’ rights. Neither Blackburn nor Brown—both of whom served in supervisory capacities—

appeared to have any knowledge of the protections provided by Section 105(c). Had any 

supervisor at GMS had knowledge or training in miners’ rights, then Bungard’s request for 

safety equipment, followed closely by a suspension, would have immediately raised red flags, 

such that an investigation would have been conducted. But GMS, which provides services to 

numerous mines, did not even have a policy in place concerning the investigation of 

discrimination or harassment. Tr. 231-33, 245. 

GMS cannot claim some sort of safe harbor based on Jackson’s ignorance of the actual 

events when that ignorance was a result of Jackson choosing not to investigate the incident prior 

to firing Bungard. Jackson may not have evinced animus towards the protected activity, but by 

choosing to adopt whole cloth Blackburn’s second-hand account of Brown’s, the hostility that 

Brown displayed towards the protected activity can be ascribed to Jackson. Respondent has 

essentially requested a benefit for its personnel deciding to engage in purposeful ignorance of the 

law and the facts on the ground. Because each person up the chain of command made the 

conscious decision to blindly adopt the account of the person beneath them, without performing 

any investigation, then they also adopted the animus of the person beneath them. Therefore, I 

 

 17 There were only two witnesses—Bungard and Brown—to most of the interactions 

between Bungard and Brown. Bungard appeared to be a credible and forthright witness at 

hearing, and as he was the only one of these two to testify at hearing, I fully credit his account of 

what transpired between them. 

38 FMSHRC Page 2678
find that animus towards the protected activity was a motivating factor in the decision to fire 

Bungard.18

With respect to the second factor of knowledge of the protected activity, both Blackburn 

and Jackson testified that they were aware that Bungard requested a dust mask on January 16. Tr. 

152-53, 212. Therefore, they both had knowledge of the protected activity. 

With respect to coincidence in time between the protected activity and the adverse action, 

the Commission has noted, A[a] three week span can be sufficiently close in time@, especially 

when there is evidence of intervening hostility, animus or disparate treatment. CAM Mining, 

LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap existed between 

the miners= contact with MSHA and the operator=s failure to recall miners from a layoff; 

however, only one month separated MSHA=s issuance of a penalty resulting from the miners=

notification of a violation and that recall failure. Sec=y of Labor on behalf of Hyles v. All 

American Asphalt, 21 FMSHRC 34 (Jan. 1999). Similarly, in Pamela Bridge Pero v. Cyprus 

Plateau Mining Corp., the Commission found a five-month gap to constitute close temporal 

proximity between the protected activity and the adverse employment action. 22 FMSHRC 1361, 

1365 (Dec. 2000). The Commission stated AWe >appl[y] no hard and fast criteria in determining 

coincidence in time between protected activity and subsequent adverse action when assessing an 

illegal motive. Surrounding factors and circumstances may influence the effect to be given to 

such coincidence in time.=@ Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 

FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)). In 

the instant case, Bungard was sent home within the same shift of his requesting a dust mask. He 

was officially terminated by Jackson four days later. This close time frame weighs in favor of 

finding a nexus between the protected activity and the adverse employment action. 

In the instant case, no evidence was presented with respect to disparate treatment. 

However, weighing the other indicia, I find that the Respondent’s adverse employment actions 

were motivated in significant part by Bungard’s protected activity. 

D. Affirmative Defenses 

Respondent argues that it would have taken the same actions that it took with regards to 

Bungard’s termination based on unprotected activity alone. Resp. Brief at 25-27. The 

unprotected activity that it cites in this regard is insubordination towards Brown. Id. In raising 

this argument, the Respondent bears the burden of production and proof with regards to each 

element of the defense. Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 15 (Jan. 1984). 

 18 Further, I find the Respondent’s argument that Brown had no authority to fire Bungard 

problematic. Brown told Bungard and the rest of the crew that Bungard was fired. Bungard left 

work understanding that he had been fired. Blackburn and Jackson engaged in no independent 

investigation or review of the events, and their actions with respect to proceeding with the 

termination appeared merely ministerial. Therefore, in effect, Brown was the decision-maker 

with respect to Bungard’s termination. 

38 FMSHRC Page 2679
The problem with Respondent’s defense is that they provided no credible evidence that 

Bungard was insubordinate towards Brown. I find that Bungard’s testimony concerning the 

events was credible. Jackson may well have based his decision to terminate Bungard based on 

Blackburn’s account, which was based solely on Brown’s account. As there was no investigation 

into the matter by Blackburn or Jackson, their testimony represents hearsay and hearsay upon 

hearsay. Their decisions to rubber-stamp Brown’s account of the situation in no way compels 

this court to affix a rubber-stamp upon their rubber-stamp. The judge’s role is not to “pass on the 

wisdom or fairness of such asserted business justifications, but rather only to determine whether 

they are credible and, if so, whether they would have motivated the particular operator as 

claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). However, in this 

instance, the Respondent had no policy for how to deal with issues involving protected activities 

or discrimination, and every decisionmaker chose to actively remain ignorant of whether 

Brown’s account was truthful or whether a miner was being discriminated against. The decision 

to fire Bungard was not a reasonable business decision because statutorily protected activities 

were implicated and no investigation was conducted as to whether they were the cause for the 

termination. Respondent alleges that Bungard was insubordinate and that he tried to engage 

Brown in a fight, but the only credible evidence presented at hearing showed that Bungard asked 

for a dust mask and Brown tried to engage him in a fight. Therefore, I find that Respondent’s 

“proferred reasons had no basis in fact.” Turner v. Nat. Cement Co. of California, 33 FMSHRC 

1059, 1073 (May 2011). Effectively, the Respondent’s conduct makes it impossible to determine 

whether unprotected activities played any role in its decision, because there is no proof that any 

unprotected activities actually occurred. 

2) Interference: 

A miner may also bring a complaint “for unjustified interference with the exercise of 

protected rights which is separate from the more usual intentional discrimination claims 

evaluated under the Pasula-Robinette framework.” UMWA on behalf of Franks and Hoy v. 

Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug. 2014) (Young & Cohen, Comm’rs), 

vacated, 620 Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07 (Jordan & Nakamura, Comm’rs). 

To make out a claim of discrimination under the Pasula-Robinette framework, an 

employee must prove that he engaged in protected activity and suffered an adverse 

employment action motivated at least in part by the protected activity. Turner v. Nat’l 

Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of 

Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds 

sub nom. Consol. Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In 

contrast, in interference cases, the Commission has accepted claims where the 

complainant did not actually engage in protected activity or where the conduct 

complained of was verbal harassment rather than a classic adverse employment action. 

See Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005); 

Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 

1985). In these cases, the Commission has focused not on the employer’s motive, but 

rather on whether the conduct would “chill the exercise of protected rights,” either by the 

38 FMSHRC Page 2680
directly affected miner or by others at the mine. Gray, 27 FMSHRC at 8; Moses, 4 

FMSHRC at 1478-79. 

Sec’y Of Labor on behalf of Greathouse v. Monongalia County Coal Co., 38 FMSHRC 941, 947 

(May 2016)(ALJ). 

In the Franks case, two Commissioners provided a framework for analyzing interference 

claims based upon its prior precedent in Gray and Moses, and recently, a majority in the 

Commission affirmed the use of this test.19 According to this test, an interference violation 

occurs if: 

1) A person’s action can be reasonably viewed, from the perspective of 

members of the protected class and under the totality of the circumstances, 

as tending to interfere with the exercise of protected rights, and 

2) The person fails to justify the action with a legitimate and substantial 

reason whose importance outweighs the harm caused to the exercise of 

protected rights. 

UMWA on behalf of Franks and Hoy v. Emerald Coal Resources, 36 FMSHRC at 2108. 

According to this analysis “proof of the operator’s intent to interfere with the miner’s statutory 

rights is not required.” Id. at 2112-2113. 

Applying this test to the instant case, I find that the Respondent interfered with Bungard’s 

statutory rights. Bungard had a right under the Mine Act to request safety equipment, such as a 

dust mask. When Bungard exercised that right, Brown told Bungard in front of the crew that it 

was his responsibility to have a dust mask. Tr. 107. Brown began pointing and yelling at 

Bungard, and displayed visible anger. Tr. 123. Brown then tried to engage in a fight with 

Bungard, and subsequently fired him. Tr. 51-57, 110. Brown told the rest of the crew that he 

planned on suspending Bungard for requesting a dust mask, but fired him because he tried to 

fight with him. Tr. 111. Bungard, Gonchoff, Glenn Denning, and others in the crew believed that 

Bungard was fired for asking for a dust mask. Tr. 111-12. A reasonable person in Bungard’s 

position would understand Respondent’s conduct to mean that one risked losing his job if he 

requested safety equipment. 

Under the second prong of the test, the Respondent argues that it had a legitimate reason 

for firing Bungard because Bungard was insubordinate and tried to fight with Brown. The 

problem with this argument, as described supra, is that there is no credible evidence that 

 19 Several ALJs have adopted this test. See Sec’y Of Labor on behalf of Greathouse v. 

Monongalia County Coal Co. , 38 FMSHRC 941 (May 2016)(ALJ); Sec'y of Labor on behalf of 

McGary v. Marshall Cty. Coal Co., 37 FMSHRC 2597, 2603-04 (Nov. 2015) (ALJ); McGlothlin 

v. Dominion Coal Corp., 37 FMSHRC 1256, 1264-65 (June 2015) (ALJ); Pendley v. Highland 

Mining Co., 37 FMSHRC 301, 309-11 (Feb. 2015) (ALJ). The Commission has recently decided 

that a judge did not err when she applied the Franks test in an interference test. Sec’y of Labor on 

behalf of McGary v. The Marshall County Coal Co.l, WEVA 2015-583-D (Aug. 26, 2016). 

38 FMSHRC Page 2681
Bungard was insubordinate or tried to fight with Brown. All the evidence presented at hearing 

from those that were present for any part of the interaction described a chain of events where the 

reverse occurred. I discount Blackburn and Jackson’s testimony to the contrary because they 

chose not to investigate the incident, and their entire understanding of the events stemmed solely 

from Brown.20 Accordingly, I find that there was no legitimate and substantial reason for 

Respondent’s actions that outweigh the harm caused to the exercise of protected rights. 

3) Damages and Penalty 

A successful complainant is entitled to be made whole for the entire period of his 

unemployment, plus interest. See Local Union 2274,District 28, UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1493 (Nov. 1988)(“ Local 2274”). However, the Commission has held that 

A backpay award “may be reduced in appropriate circumstances where an employee 

incurs a ‘willful loss of earnings.”’ 21 FMSHRC at 284 (quoting Secretary of Labor on 

behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 144 (Feb. 1982)) (other 

citations omitted). Under the duty to mitigate damages from discrimination, “a 

discriminatee is not entitled to back pay to the extent that he fails to remain in the labor 

market, refuses to accept substantially equivalent employment, fails diligently to search 

for alternative work, or voluntarily quits without good reason.” NLRB v. Madison 

Courier, Inc., 472 F.2d 1307, 1317 (D.C. Cir. 1972) (citations omitted) (emphasis in 

original). 

Secretary of Labor, on behalf of Walter Jackson v. Mountain Top Trucking Company, Inc., 21 

FMSHRC 1207, 1212 (Nov. 1999). 

In the instant case, Bungard typically worked 48 hours per week for GMS at $15 per hour 

for the first 40 hours and $22.50 overtime. Tr. 34-35. Bungard was fired on January 16, 2015 and 

gained full time employment on October 19, 2015. However, Bungard did not make efforts to 

find employment (aside from casual employment he engaged in) until the late summer. Tr. 86. 

Bungard’s belief that he was blacklisted from mining, while sincere, was based on no objective 

evidence. Furthermore, his stress following the termination does not warrant him not searching 

for employment for months. I find that had Bungard been diligent in searching for employment, 

he would have found a comparable position to the one he held with GMS within 6 months of his 

termination. 

Respondent argues that Bungard’s damages should be cut off when GMS engaged in a 

large reduction of force in April 2015. The Commission has recognized that a bona fide 

reduction in force can toll a miner’s right to back pay, and the burden in showing that work is no 

longer available for the complainant lies with the employer. Sec’y of Labor, on behalf of Gatlin 

v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054-55 (Oct. 2009). The Respondent must make 

this showing by a preponderance of the evidence. Sec’y of Labor, on behalf of C.R. Meyer and 

Sons Co., 35 FMSHRC 1183, 1188 (2013). I find that the Respondent has not met this burden. 

 20 The only other person present for the January 16 incident, Brown, did not testify at 

hearing. 

38 FMSHRC Page 2682
GMS argues that it laid off between 230-240 workers in April of 2015, and that Bungard, 

as a red hat, would not have been retained as an employee or offered a transfer. Tr. 161-63, 253, 

270-271. However, GMS appeared to use no objective criteria in making the decision concerning 

which miners would be laid off, which retained, and which offered transfer. Tr. 242-43. 

Blackburn had a meeting with Jackson and regional manager John Mattingly before creating a 

spreadsheet. Tr. 183. He did not use any criteria provided by Human Resources, but testified that 

he used his own experiences and information provided by subordinates. Tr. 182. GMS 

employment records indicate that red hat miners remained at the mine or were recalled. GX-2, 

GX-3. Furthermore, GMS has continued to recruit and hire new employees, holding job fairs and 

interview sessions. Tr. 254-55. Indeed, their online advertisements state that they are “constantly 

expanding operations and constantly in need of good employees.” Tr. 254. Without anything 

more than an ad hoc system for determining layoffs and transfers, I cannot find that Bungard 

would have been laid off during the spring reduction in force, or that he would not have been 

offered a recall. 

Accordingly, Bungard is entitled to 26 weeks of backpay at a rate of $780.00 per week, 

plus pre-judgment interest calculated on the federal rate designated by the Internal Revenue 

Service for the underpayment of taxes. See Local 2274, 10 FMSHRC at 1505. Additionally, 

Respondent must expunge Bungard’s employment records of all references to his unlawful 

termination, and must inform the Mine that Bungard was unlawfully terminated. 

The Secretary proposed a penalty of $25,000.00 for Respondent’s violations. The 

principles governing the authority of Commission Administrative Law Judges to assess civil 

penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine 

Act delegates to the Commission and its judges “authority to assess all civil penalties provided in 

[the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the Secretary. 30 

U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to 

challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 

2700.28. The court’s assessment here is independent, and the Secretary’s proposal “is not a 

baseline or starting point,” that the court has used in its assessment. Sec’y of Labor, MSHA v. The 

American Coal Co., LAKE 2011-701. The Act requires that in assessing civil monetary 

penalties, the judge must consider six statutory penalty criteria: the operator’s history of 

violations; its size; whether the operator was negligent; the effect on the operator’s ability to 

continue in business; the gravity of the violation; and whether the violation was abated in good 

faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has held 

that judges must make findings of fact on the statutory penalty criteria. Sellersburg Stone Co., 5 

FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings 

have been made, a judge’s penalty assessment for a particular violation is an exercise of 

discretion “bounded by proper consideration of the statutory criteria and the deterrent purposes 

underlying the Act’s penalty scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 

(May 2000). 

In the instant case, the only factor weighing in GMS’s favor is that it does not have an 

extensive history of Section 105(c) violations. However, the other factors weigh strongly against 

the Respondent. GMS is a large contractor for penalty purposes. The gravity of the matter is 

exceptionally serious, as miners should not be demeaned, disciplined, or fired for reasonably 

38 FMSHRC Page 2683
requesting safety equipment. GMS’s handling of the entire situation, from creating a difficult 

process to procure safety equipment, to not training any of its management in miners’ rights, to 

failing to conduct any sort of investigation, exhibits not just a high level, but very high level, of 

negligence. GMS did not make any good faith effort to rectify, investigate, or even acknowledge 

Bungard’s allegations. GMS has presented no evidence that the proposed penalty will impact its 

ability to continue in business. Considering all of the factors, I find that a $35,000.00 penalty is 

appropriate. 

CONCLUSION AND ORDER 

Based on the foregoing, I find that Respondent violated §105(c) of the Act by 

discriminating against Bungard for engaging in protected activity and interfering with his 

statutory rights. 

Respondent is ORDERED to pay Bungard for 26 weeks of backpay, at $780.00 per 

week, plus interest.21 Further, Respondent shall expunge Bungard’s employment records of all 

references to his unlawful termination, and must inform the Mine that Bungard was unlawfully 

terminated. 

It is further ORDERED that Respondent pay a civil penalty of $35,000.00 within 40 

days of this decision to the Secretary of Labor.22

/s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

 21 The interest should be calculated using the Arkansas-Carbona/Clinchfield Coal Co.

method, which provides that the amount of interest equals the quarter’s net back pay multiplied 

by the number of accrued days of interest multiplied by the short-term federal underpayment 

rate. Sec’y of Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2052 (Dec. 

1983), as modified by Clinchfield Coal Co., 10 FMSHRC 1493, 1505-06 (Nov. 1988). 

22 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

38 FMSHRC Page 2684
Distribution: (U.S. Certified Mail) 

Jordana L. Greenwald, Esq., Office of the Solicitor, U. S. Department of Labor, The Curtis 

Center, Suite 630 East, 170 South Independence Mall West, Philadelphia, PA 19106-3306 

Sunshine R. Fellows, Esq., The Levicoff Law Firm, P.C., Center City Tower, Suite 1900, 650 

Smithfield Street, Pittsburgh, PA 15222 

Shayne Bungard, 2002 4th Street, Moundsville, WV 26041 

38 FMSHRC Page 2685
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

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

October 24, 2016 

 

DECISION APPROVING SETTLEMENT UPON REMAND 

Before: Judge Manning 

 On March 10, 2014, I issued a decision after hearing in the above dockets.1 Black Beauty 

Coal Co., 36 FMSHRC 1821 (Mar. 2014 published July 2014) (ALJ). The Commission granted 

cross- petitions for discretionary review and issued its decision on June 16, 2016. 38 FMSHRC 

1307 (June 2016). In its decision, the Commission remanded several issues to me in light of its 

decision. These issues are: (1) whether the violations set forth in Citation Nos. 8414910 & 

6680994 and Order Nos. 8414938 & 8414939 significantly and substantially contributed to the 

cause and effect of a coal mine safety or health hazard (S&S); and (2) whether the violations set 

forth in Order Nos. 8414938 & 8414939 were the result of Black Beauty’s unwarrantable failure 

to comply with section 75.400. 

 The Commission held that “the Judge’s determination that the violations in these 

[citations and] orders were not S&S may have been flawed due to consideration of redundant 

safety measures.” 38 FMSHRC at 1315. It further concluded that “the Judge’s non-S&S findings 

might have influenced his view of the degree of danger, and consequently his unwarrantable 

failure determinations for these orders.” Id. (footnote omitted). The Commission then remanded 

“the Judge’s S&S and unwarrantable failure findings at issue for reconsideration in light of [its] 

decision.” 38 FMSHRC at 1316. 

 1

 My decision also included dockets LAKE 2009-410 and LAKE 2009-415 which are not 

at issue on remand. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

BLACK BEAUTY COAL COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2009-412 

A.C. No. 11-03060-179547-02 

Riola Mine Complex-Vermillion Grove 

Docket No. LAKE 2009-413 

A.C. No. 12-02010-179550-01 

Docket No. LAKE 2009-414 

A.C. No. 12-02010-179550-02 

Air Quality #1 Mine 

38 FMSHRC Page 2686
 I encouraged the parties to settle the S&S and unwarrantable failure issues in a manner 

that was consistent with the Commission’s decision. The parties reached a settlement and filed a 

motion to approve settlement on October 20, 2016. The terms of the settlement are as follows: 

 1. Citation No. 8414910, LAKE 2009-414. 

 This citation, issued under section 104(a) of the Mine Act, states that the approved 

ventilation plan was not being complied with in the No. 1 active section in violation of section 

75.370(a)(1). Specifically, the citation states that a Joy continuous mining machine being 

operated in the No. 7 entry was not being supplied with adequate ventilation to dilute, render 

harmless, and carry away flammable and explosive gasses, dust, and fumes while mining. The 

plan required 7,000 CFM of air and the velocity at the inby end of the wing curtain was about 

4,982 CFM. The issuing inspector determined that an injury or illness was reasonably likely as a 

result of the violation and that permanently disabling injuries could reasonably be expected. He 

determined that the violation was S&S, that four people would be affected, and that the violation 

was the result of the operator’s moderate negligence. The Secretary proposed a penalty of 

$3,996. In my decision I affirmed the violation but reduced the gravity, vacated the S&S 

determination, and assessed a penalty of $2,000. 36 FMSHRC at 1850-51. 

 Black Beauty has agreed to accept this citation as originally written by the MSHA 

inspector and will accept the Secretary’s proposed penalty of $3,996. 

2. Citation No. 6680994, LAKE 2009-412. 

 This citation, issued under section 104(a) of the Mine Act, states that oil, oil saturated 

coal fines, and brake fluid were present on a mantrip on Unit #1 in violation of section 75.400. 

The citation states that the accumulations were in the transmission compartment, brake caliper 

compartment, and the muffler compartment. The issuing inspector determined that an injury or 

illness was reasonably likely as a result of the violation and that lost workdays or restricted duty 

could reasonably be expected. He determined that the violation was S&S, that 14 people would 

be affected, and that the violation was the result of the operator’s moderate negligence. The 

Secretary proposed a penalty of $23,229. In my decision, I affirmed the violation but vacated the 

S&S determination and assessed a penalty of $12,000. 36 FMSHRC at 1826-28. 

 The parties propose to modify the citation to delete the inspector’s S&S determination. 

The proposed settlement is based, in part, upon the representation that the temperature of the 

engine and transmission housing does not exceed 215 degrees Fahrenheit but the flash point for 

oil and coal dust was significantly higher than 300 degrees Fahrenheit. As a consequence, the 

violation was unlikely to contribute to an injury or illness. The parties agree that I should assess a 

penalty of $12,000 for this violation. 

3. Order No. 8414938, LAKE 2009-413. 

 This order, issued under section 104(d)(2) of the Mine Act, states that combustible 

material was allowed to accumulate in the last three crosscuts of the south slope belt in violation 

of section 75.400. The order further states that the accumulations consisted of float coal dust 

38 FMSHRC Page 2687
deposited on rock dusted surfaces from rib to rib. The accumulations were distinctively black in 

color and ranged from a thin coating to approximately one quarter inch in depth. This dust was 

also found on timbers and belt structure. The issuing inspector determined that an injury or 

illness was reasonably likely as a result of the violation and that lost workdays or restricted duty 

could reasonably be expected. He determined that the violation was S&S, that two people would 

be affected, and that the violation was the result of the operator’s high negligence. The Secretary 

proposed a penalty of $10,705. In my decision, I affirmed the violation but vacated the S&S and 

unwarrantable failure determinations and assessed a penalty of $8,000. 36 FMSHRC at 1832-35. 

 The parties propose to modify this order to a section 104(a) citation, thereby removing 

the unwarrantable failure determination made by the MSHA inspector. The MSHA inspector’s 

S&S and high negligence determinations remain. The proposed settlement is based, in part, upon 

the representation that significant accumulations were not present during the previous 

examination conducted by the operator. As a consequence, the violation was not caused by an 

unwarrantable failure of the operator to comply with the safety standard. The parties agree that I 

should assess a penalty of $8,000 for this violation. 

 4. Order No. 8414939, LAKE 2009-413. 

 This order, issued under section 104(d)(2) of the Mine Act, states that combustible 

material was allowed to accumulate upon the energized main south belt from head to tail in 

violation of section 75.400. The order further states that the accumulations consisted of a thin 

coating of float coal dust on rock dusted surfaces that was distinctively black in color. The 

accumulations also extended into two crosscuts. The issuing inspector determined that an injury 

or illness was reasonably likely as a result of the violation and that lost workdays or restricted 

duty could reasonably be expected. He determined that the violation was S&S, that two people 

would be affected, and that the violation was the result of the operator’s high negligence. The 

Secretary proposed a penalty of $10,705. In my decision, I affirmed the violation but vacated the 

S&S and unwarrantable failure determinations and assessed a penalty of $8,000. 36 FMSHRC at 

1836-38. 

 The parties propose to modify this order to a section 104(a) non-S&S citation. Thus, they 

are proposing to remove both the unwarrantable failure and S&S determinations made by the 

MSHA inspector. The MSHA inspector’s high negligence determination remains unchanged but 

the likelihood that the violation would contribute to an injury or illness is reduced to “unlikely.” 

The proposed settlement is based, in part, upon a representation that the accumulations were not 

as extensive as set forth in the inspector’s order and the rollers for the belt were not hot. As a 

consequence, the violation was unlikely to contribute to an injury or illness and it was not caused 

by an unwarrantable failure of the operator to comply with the safety standard. The parties agree 

that I should assess a penalty of $8,000 for this violation. 

38 FMSHRC Page 2688
ORDER 

 I have considered the representations and documentation submitted and I conclude that 

the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. The 

motion to approve the settlement of the remanded citations and orders is GRANTED and Black 

Beauty Coal Company or its successor is ORDERED TO PAY the Secretary of Labor the sum 

of $1,996 within 30 days of the date of this decision.2 

 

/s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

Emily L.B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., 

Suite 216, Denver, CO 80204-3598 

Arthur Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., 

Pittsburgh, PA 15222-1009 

RWM 

 2

 Following my March 10, 2014, decision on the merits, Black Beauty paid the $30,000 

penalty I assessed for the four violations. (Motion to Approve Settlement at 2). The $1,996 due 

now reflects the difference between the total owed by Black Beauty in this Decision Approving 

Settlement on Remand and the amount previously paid. Payment should be sent to the Mine 

Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, 

St. Louis, MO 63179-0390. 

38 FMSHRC Page 2689
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

October 26, 2016

DECISION APPROVING SETTLEMENT ON REMAND 

AND 

ORDER TO PAY 

Before: Judge Feldman 

 This civil penalty proceeding involves two citations issued to Premier Elkhorn Coal 

Company (“Premier”) in connection with a fatal coal truck accident. Citation No. 8230316 

alleges a violation of 30 C.F.R. § 77.1607(b), which requires that “[m]obile equipment operators 

shall have full control of the equipment while it is in motion.” Specifically, Citation No. 8230316 

provides: 

A fatal accident occurred on December 12, 2009, when the driver of the 2006 red 

International Paystar coal haulage truck, owned by Trivette Trucking (Q080), 

VIN 1HTXHAPTX63J233337, failed to maintain control of the loaded truck as it 

was descending the mine haul road. Overloading of the truck was a factor in the 

driver losing control. The estimated weight of the truck was 37,600 pounds over 

the GVWR recommended by the manufacturer. Premier Elkhorn was aware that 

the trucks were routinely overloaded and did nothing to stop this practice. This 

truck operates on mine roads as well as public highways. This condition is an 

unwarrantable failure to comply with a mandatory safety standard. 

Relatedly, Citation No. 8230317 alleges a violation of 30 C.F.R. § 77.1605(b), which 

requires that “[m]obile equipment shall be equipped with adequate brakes, and all trucks and 

front-end loaders shall also be equipped with parking brakes.” Specifically, Citation No. 

8230317 provides: 

The red International Paystar model 5600I haul truck, Vehicle ID 

1HTXHAPTX63J233337, was not equipped with adequate brakes. This truck was 

involved in a fatal accident on December 12, 2009. The operator of this mine did 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

PREMIER ELKHORN COAL COMPANY, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2011-827 

A.C. No. 15-17360-248539 

Mine: PE Southern Pike Co. 

38 FMSHRC Page 2690
not assure that the above listed truck being operated by a contractor was equipped 

with adequate brakes. A mechanical evaluation conducted during the fatal 

accident investigation revealed the following conditions were present: 1. Both the 

left and right side brake drums on the steering axel had deposits of dried grease on 

the drum lining friction surface. These conditions compromise the braking 

activity. 2. The right side brake on the rear tandem axel did not function when 

tested. 3. Wear on the brake drums in excess of maximum allowable diameter was 

found on the right front tandem and both the left and right side on the rear 

tandems. 4. Bluing was found on the right side drum on the front tandem and the 

left side drum on the rear axle. Bluing indicates excessive heat. These conditions 

compromise the braking capacity. This truck operates on mine roads as well as 

public highways. 

I. Procedural History 

 After a hearing on the merits, Administrative Law Judge Jeffrey Tureck vacated both 

citations, finding that the Secretary failed to demonstrate that the subject haul truck was hauling 

an unsafe amount of coal, and that the accident was more likely attributable to a steering problem 

that caused the brakes and steering to simultaneously fail. 35 FMSHRC 150, 164 (Jan. 2013) 

(ALJ). The Secretary filed a petition for discretionary review, which was granted by the 

Commission.1

 

 On review, regarding Citation No. 8230317, the Commission concluded that Judge 

Tureck’s finding that the condition of the haul truck’s brakes did not cause the fatal accident was 

supported by substantial evidence. As such, the Commission affirmed the vacation of Citation 

No. 8230317. 38 FMSHRC 1587, 1595 (July 2016). 

However, the Commission reversed Judge Tureck’s vacation of Citation No. 8230316 

based on his finding that Premier was not responsible for loss of control of the truck because the 

Secretary failed to establish that the truck was loaded in excess of the manufacturer’s gross 

vehicle weight rating. Id. at 1593. In so doing, the Commission relied on Clintwood Elkhorn 

Mining Co., 35 FMSHRC 365, 370 (Feb. 2013), which held that the Secretary is not required to 

prove “a causal or contributing factor for the loss of control” to establish a violation of section 

77.1607(b), but rather only must demonstrate that the truck driver lost control of his vehicle. 38 

FMSHRC at 1591. Here, the Commission determined that the truck driver lost control of his 

vehicle and that this violation, given its fatal consequences, was properly designated as 

significant and substantial (S&S). Id. at 1591-92. 

The Commission’s Clintwood Elkhorn decision narrowly held that the Secretary did not 

have to demonstrate that a truck was overloaded to establish the fact of a violation of section 

77.1607(b). However, whether such a truck is overloaded is relevant, if not determinative, in 

resolving whether the accident is attributable to an unwarrantable failure. Here, as the subject 

truck overturned, the Mine Safety and Health Administration (“MSHA”) could not determine 

 1

 As Judge Tureck is no longer with the Commission, this matter was assigned to the 

undersigned on remand on July 12, 2016. 

38 FMSHRC Page 2691
how much coal the truck was carrying prior to the accident. Id. at 1597 (Commissioner Cohen, 

dissenting). However, the inability to determine the load of an overturned truck, as a 

consequence of a truck operator’s loss of control, should not inure to the benefit of the mine 

operator. 

The Commission’s majority opinion concluded that the evidence that the truck was 

overloaded is “at best, circumstantial.” Id. at 1592. The Secretary may satisfy his burden of 

proof, with respect to the issue of unwarrantable failure, by relying on reasonable 

inferences drawn from indirect (circumstantial) evidence, provided that such inferences are 

inherently reasonable and bear a rational connection between the evidentiary facts and the 

ultimate fact to be inferred. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 

1989). I agree with the dissenting opinion of Commissioner Cohen that the record, consisting of 

weight tickets showing a pattern of overloading trucks in close temporal proximity to the 

accident, and a relevant manufactures’ truck manual providing relevant gross vehicle weight 

ratings, demonstrates that ample circumstantial evidence warrants the inference that the truck 

was overloaded.2 See 38 FMSHRC at 1590-91. Premier does not deny that overloading a truck in 

excess of the gross vehicle weight rating could cause “component failure, result[ing] in property 

damage, personal injury, or death.” Id. at 1589.

Nevertheless, the Commission’s majority decision held that Citation No. 8230316 was 

not a result of an unwarrantable failure. Id. at 1592. Consequently, the Commission now has 

remanded Citation No. 8230316 for a determination of the appropriate civil penalty. Id. at 1595. 

II. Settlement Agreement

On remand, the parties have now filed a motion to approve settlement and dismiss this 

matter. The parties have agreed on a reduction of the proposed civil penalty for Citation No. 

8230316 from $70,000.00 to $7,500.00, based on the Commission’s deletion of the 

unwarrantable failure designation. As noted above, although I believe that there is significant 

evidence reflecting that the violation may have been attributable to an unwarrantable failure, I 

am constrained to approve the parties’ settlement motion given the Commission’s majority 

decision to the contrary. 

 

 2

 Although Judge Tureck denied admission of this documentary evidence, the 

Commission noted that the judge permitted the Secretary’s witnesses to testify with respect to the 

information therein. 38 FMSHRC at 1591 n.10. 

38 FMSHRC Page 2692
Consistent with the above discussion, I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section 110(i) of the Act. WHEREFORE, the motion 

to approve settlement IS GRANTED, and pursuant to the parties’ agreement, Premier Elkhorn 

Coal Company IS ORDERED to pay the $7,500.00 civil penalty within 30 days of this Order in 

satisfaction of the single citation remaining at issue on remand.3 Upon receipt of timely payment, 

the captioned matter IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Melanie Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

/acp 

 3

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include the 

Docket No. and A.C. No. noted in the above caption on the check.

38 FMSHRC Page 2693
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 27, 2016 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

On behalf of THOMAS MCGARY and 

RON BOWERSOX, 

 Complainants, Docket No. WEVA 2015-583-D 

 MORG-CD 2014-15 

 v. 

THE MARSHALL COUNTY COAL CO., 

MCELROY COAL COMPANY, 

MURRAY AMERICAN ENERGY, INC., 

AND 

MURRAY ENERGY CORPORATION, 

 

 

 Marshall County Mine 

 Respondent. Mine ID: 46-01437 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

On behalf of RICK BAKER and RON 

BOWERSOX, 

 Complainants, Docket No. WEVA 2015-584-D 

 MORG-CD 2014-16 

 v. 

OHIO COUNTY COAL CO., 

CONSOLIDATION COAL COMPANY, 

MURRAY AMERICAN ENERGY, INC., 

AND 

MURRAY ENERGY CORPORATION, 

 

 

 Ohio County Mine 

 Respondent. Mine ID: 46-01436 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

On behalf of ANN MARTIN and RON 

BOWERSOX, 

 Complainants, Docket No. WEVA 2015-585-D 

 MORG-CD 2014-17 

 v. 

 

 

 

38 FMSHRC Page 2694
HARRISON COUNTY COAL CO., 

CONSOLIDATION COAL COMPANY, 

MURRAY AMERICAN ENERGY, INC., 

AND 

MURRAY ENERGY CORPORATION, 

 Respondent. 

 Harrison County Mine 

 Mine ID: 46-01318 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

On behalf of RAYMOND COPELAND and 

RON BOWERSOX, 

 Complainants, Docket No. WEVA 2015-586-D 

 MORG-CD 2014-18 

 v. 

MONONGALIA COUNTY COAL CO., 

CONSOLIDATION COAL COMPANY, 

MURRAY AMERICAN ENERGY, INC., 

AND 

MURRAY ENERGY CORPORATION, 

 

 

 Monongalia County Mine 

 Respondent. Mine ID: 46-01968 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

On behalf of MICHAEL PAYTON and 

RON BOWERSOX,

 Complainants, Docket No. WEVA 2015-587-D 

 MORG-CD 2014-19 

 v. 

MARION COUNTY COAL CO., 

CONSOLIDATION COAL COMPANY, 

MURRAY AMERICAN ENERGY, INC., 

AND 

MURRAY ENERGY CORPORATION, 

 

 

 Marion County Mine 

 Respondent. Mine ID: 46-01433 

DECISION ON REMAND 

Appearances: Charles Lord, Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for the Complainants; 

 

 Laura Carr, UMWA, Washington, D.C., for the Complainants; 

 

38 FMSHRC Page 2695
 Thomas Smock and Philip Kontul, Ogletree, Deakins, Nash, Smoak & Stewart, 

P.C., Pittsburgh, Pennsylvania, for the Respondents. 

Before: Judge Miller 

These cases are before me based upon complaints of interference brought by a number of 

employees at five mines owned and operated by Murray Energy Corporation (“Murray Energy”). 

The cases were brought pursuant to the interference provisions of Section 105(c) of the Federal 

Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c) (“the Act”). The parties 

presented evidence on the claims at hearing and a decision was issued on November 16, 2015. 

Sec’y of Labor on behalf of McGary v. Marshall Cty. Coal Co., 37 FMSHRC 2597 (Nov. 2015) 

(ALJ). The Commission issued a decision after review on August 26, 2016. Sec’y of Labor on 

behalf of McGary v. Marshall Cty. Coal Co., 38 FMSHRC __, No. WEVA 2015-583-D (Aug. 

26, 2016). The Commission remanded two issues to me, and I address them here. See id., slip 

op. at 21. 

At issue in each of the cases is a mandatory “awareness meeting” that was held at each of 

the mines, in which the CEO of Murray Energy, Robert Murray, discussed complaints that had 

been made by miners to the Mine Safety and Health Administration (“MSHA”). The parties 

appeared at a hearing beginning on Tuesday, September 21, 2015, in Pittsburgh, Pennsylvania. 

Although the parties stipulated to many of the facts and documents to be admitted in the case, 

each side also provided a list of potential witnesses for the hearing. Just prior to the hearing, 

Murray Energy filed a complaint in federal district court that named one of the witnesses as a 

party and included the deposition testimony of two other witnesses from this case in the body of 

the complaint. As a result, the three witnesses did not want to testify. None of the parties 

presented testimony, but they did present documents, stipulations and arguments. The parties 

were also given the opportunity on remand to present additional briefs in support of their 

positions. 

The hearing and evidence addressed in the original decision focused on whether Murray 

Energy had interfered with the Complainants’ rights to make a complaint to MSHA pursuant to 

Section 103(g) of the Act and therefore violated the interference provision of Section 105(c)(1) 

of the Act. I determined that Murray Energy and the five mines did violate Section 105(c) by 

interfering with the miners’ rights to make anonymous complaints to MSHA pursuant to Section 

103(g) of the Mine Act. 37 FMSHRC at 2605-08. I also addressed the relief sought by the 

Secretary and the six proposed penalties of $20,000.00 each. 37 FMSHRC at 2608-10. I 

assessed five of the six proposed penalties, but increased the amounts from $20,000.00 to 

$30,000.00 for each of the five violations. 

Both the Secretary and Respondents appealed the decision to the Commission. The 

Commission agreed that the operators’ actions at all five mines impermissibly interfered with the 

rights of miners to make anonymous 103(g) complaints to the Secretary. McGary, slip op. at 13 

(Aug. 26, 2016). The majority also agreed that the sixth claim against the mine was correctly 

dismissed as being duplicative of the five others. Id. at 16-17. Thereafter, the Commission 

addressed the penalties and specifically directed that the basis for the increased penalty be 

adequately provided. Id. at 17-20. The Commission also suggested that the relief regarding 

38 FMSHRC Page 2696
posting of a notice and reading a notice to miners be clarified. Id. at 20-21. The issues for 

remand, then, are the appropriate penalty amount for five interference claims along with a 

clarification of the statement that the Court ordered to be read at the five mines regarding the 

interference with the right to make a complaint to MSHA. 

For purposes of this decision regarding the penalty and the statement to be made by 

Murray management, I incorporate the facts and findings as set forth in the original decision. I 

rely on no further facts but have reviewed the briefs and information that the parties have 

provided to address these two issues on remand. As discussed in that first decision, an 

interference claim requires proof that the operator’s conduct interfered with “the exercise of 

protected rights.” 37 FMSHRC at 2604 (quoting Sec’y of Labor on behalf of Gray v. N. Star 

Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005); Moses v. Whitely Dev. Corp., 4 FMSHRC 1475, 

1478-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985)). Here, the right at issue is the right of 

miners and their representatives to make health and safety complaints directly to MSHA. Under 

Section 103(g) of the Mine Act, a miner who has reasonable grounds to believe that a violation 

of the Act or a safety or health standard exists at the mine “shall have a right to obtain an 

immediate inspection” upon giving notice to the Secretary. 30 U.S.C. § 813(g)(1). The 

legislative history of the Act explains that this provision was included because of “the 

Committee’s firm belief that mine safety and health will generally improve to the extent that 

miners themselves are aware of mining hazards and play an integral part in the enforcement of 

the mine safety and health standards.” S. Rep. No. 95-181, at 30 (1977). Confidentiality is 

crucial to the exercise of the 103(g) right. See UMWA on behalf of Franks v. Emerald Coal Res., 

LP, 36 FMSHRC 2088, 2109-11 (Aug. 2014). I found that the right to make complaints is 

fundamental and that interfering with that right is a serious matter. 37 FMSHRC at 2610. 

In the original decision, I raised the penalty amount from the $20,000.00 per incident 

sought by the Secretary to $30,000.00 each. Id. I did so based in part on the seriousness of the 

interference as well as the mine’s filing of a complaint against the UMWA based upon 

information learned during depositions prior to the hearing, thereby chilling the willingness of 

witnesses to testify. Id. at 2609-10. Prior to hearing in this case, the parties presented a list of 

witnesses and exhibits. Three of the six complainants, Ron Bowersox, Michael Payton and Ann 

Martin, were named as witnesses for the Secretary. On the Friday prior to the hearing scheduled 

for Tuesday, September 22, 2015, Respondents filed a complaint in the U.S. District Court 

against the UMWA and Bowersox. Excerpts from the deposition testimony of Bowersox, Martin 

and Payton in this case were quoted in the complaint and were part of the basis of that complaint. 

The case in the district court was subsequently dismissed but was addressed in the Commission 

decision on appeal. The Commission found that the district court complaint was properly 

admitted into evidence in this case, but that it was best addressed in a separate case as a separate 

instance of interference and should not be considered in assessing the penalty in this case. 

McGary, slip op. at 20 (Aug. 26, 2016). 

Penalty. 

 The Secretary has proposed a penalty of $20,000.00 for each of the five penalties 

assessed in this case. In its brief after remand, the Secretary argues that the $20,000.00 as 

 

38 FMSHRC Page 2697
proposed should be assessed. The mine operator argues primarily that there is no basis in the 

record to raise the penalty above the proposed amount. 

 The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must 

consider six statutory penalty criteria: the operator’s history of violations; its size; whether the 

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

the violation; and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping 

with this statutory requirement, the Commission has held that judges must make findings of fact 

on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion “bounded by proper 

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty 

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

 The history of assessed violations was admitted into evidence. The mines have no 

history of interference violations. The mines and the Murray entities are large operators. The 

parties have stipulated that the penalties as proposed will not affect Respondents’ ability to 

continue in business. Jt. Stips. ¶¶ 34, 35. With regard to good faith abatement, as of the date of 

the hearing, the mine had not investigated or disciplined any miners for violating the reporting 

policy. However, there is no evidence that the mine had taken any steps to rescind the policy, 

either. I find the gravity of the violation to be serious because a high-ranking official announced 

the policy in a mandatory meeting, regarding complaints that miners have every right to make. 

The policy, as addressed in the meetings, carried a number of statements that could be 

understood as threats to the miners’ employment. I also find the negligence to be a factor in the 

penalty given all of the facts that came to light in this case, including the nature of the 

interference and the manner in which the policy was presented to the miners. Both the 

negligence and gravity are discussed throughout the original decision. I find no basis to modify 

the proposed penalties and therefore, I assess $20,000.00 per violation as proposed by the 

Secretary. 

 

Posting and Other Relief. 

 The Secretary asks the court to order the mine to cease and desist from violating Section 

105(c), rescind its rule requiring notice to management about 103(g) complaints, and reverse any 

disciplinary actions issued as a result of the rule or policy. In addition, the Secretary seeks an 

order requiring a Murray Energy corporate officer to read a notice to all miners regarding the 

violations and requiring that the notice be mailed to all of the miners and posted at the mine for a 

period of one year. 

 

38 FMSHRC Page 2698
 Section 105(c)(2) authorizes the Commission to require a person who has committed a 

violation of Section 105(c)(1) “to take such affirmative action to abate the violation as the 

Commission deems appropriate.” 30 U.S.C. § 815(c)(2). In cases involving statutory rights 

under the National Labor Relations Act, courts have found that it is appropriate to order a 

management official to read a remedial notice to employees when there is a “particularized 

need.” Federated Logistics & Operations v. NLRB, 400 F.3d 920, 929-30 (D.C. Cir. 2005). 

 On appeal, the Commission discussed the relief granted and noted that the only remaining 

issues involved “the details of the prepared and approved statement CEO Murray is required to 

read to miners.” McGary, slip op. at 21 (Aug. 26, 2016). The Commission further agreed that 

the Secretary should clarify its position on the manner in which the statement is to be prepared 

and approved. 

 The parties addressed the issue in their briefs. The Secretary proposed language for the 

notice to be read by Murray, and also asked to have the notice that has been posted, changed. 

The Secretary’s position was supported by the UMWA. Respondents commented on the 

Secretary’s suggestions, indicated that they had posted a notice with input from the Secretary but 

chose not to propose any language to include in the notice that Mr. Murray will read to the 

miners. 

 The mine operator and the Secretary agree that the company did draft and post a notice. 

However, the original notice was posted without input from the Secretary. The Secretary, upon 

learning of the notice, advised Murray Energy that the notice did not meet his minimum 

requirements. Shortly after, Murray drafted and posted a new notice that minimally met the 

requirements suggested by the Secretary. The Secretary seeks to have that notice amended. 

However, the Secretary agrees that the posted notice meets the minimal requirements of the 

order. Therefore, while I find the notice to be different than contemplated by the original order, 

the notice has been posted and should remain posted for the term of one year in a conspicuous 

location. However, the statement to be read by Robert Murray is not the same as that posted, and 

the original order required that it be approved by all parties. Since the parties have not been able 

to agree on such language, the original order is modified so that the statement that is required to 

be read is drafted and set forth below. The statement to be read by Mr. Murray to all miners at 

the five mines is as follows: 

 The Federal Mine Safety and Health Review Commission 

has found that the Murray Energy Corporation and its West 

Virginia subsidiaries have violated the Federal Mine Safety and

Health Act and has ordered me to read and abide by this notice. In 

an awareness meeting between April and July 2014, I outlined a 

policy requiring that any safety complaint made to MSHA also be

made to management. That policy is rescinded. You have every 

right to make a complaint to MSHA without notifying any person 

at the mine. 

 Section 103(g) of the Federal Mine Act gives you the right 

to request that the Mine Safety and Health Administration conduct 

38 FMSHRC Page 2699
an immediate inspection of a condition or practice that you 

reasonably believe is an imminent danger or a violation of the 

Mine Act or its standards. Murray does not, and will not, require 

that you make the same safety or health complaints to management 

when you make complaints or reports to MSHA. You have a right,

under section 103(g) of the Mine Act, to make those reports 

anonymously and confidentially. 

 Murray and its mines will not retaliate against or take any 

adverse action against any miner or other person because they have 

made an anonymous or confidential complaint to MSHA. All 

miners have a right to make a complaint to MSHA and all miners 

are protected from retaliation or adverse action for making a 

Section 103(g) complaint. 

 Section 105(c) of the Federal Mine Safety and Health Act 

prohibits Murray and any other mine operator from discriminating 

against its miners and from interfering with their rights under the 

Act, including the right to make anonymous complaints to MSHA. 

If any interference or discrimination or adverse action occurs 

related to your right to make an anonymous complaint, or any 

other action protected by the Mine Act, you have the right to 

immediately file a discrimination or interference complaint with 

MSHA. 

 Accordingly, and as set forth in the original decision of November, 2015, Respondents 

are ORDERED TO CEASE AND DESIST from violating Section 105(c)(1) and rescind the 

rule announced at the awareness meetings requiring miners to give notice to management of 

103(g) complaints. In the event that any miner has been disciplined or subject to any adverse 

action as a result of that rule, that action is ORDERED to be rescinded immediately. Robert 

Murray is ORDERED to hold a meeting at each mine within 40 days of the date of this decision 

in which he shall read the statement set forth above, without comment or elaboration. The 

statement to be read by Murray shall be sent to each mine and posted along with the notice that is 

attached as the Secretary’s Appendix A for a period of six months. Murray may read the 

 

38 FMSHRC Page 2700
statement through a video conference in lieu of traveling to each mine. All portions of the order 

contained in the November 2015 decision not addressed here remain as originally ordered. 

 I assess a penalty of $20,000.00 for each of the five violations as proposed by the 

Secretary. Each of the five mines is hereby ORDERED to pay the sum of $20,000.00 to the 

Secretary of Labor within 40 days of the date of this order. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Samuel Lord, U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard, 22nd

Floor, Arlington, VA 22209 

Philip Mayor, U.S. Department of Labor, Office of the Solicitor, 201 12TH Street South, Suite 

401, Arlington, VA 22202 

Philip K. Kontul, Thomas A. Smock, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG 

Place, Suite 1900, Pittsburgh, PA 15222 

Laura Karr, United Mine Workers of America, 18354 Quantico Gateway Drive, Suite 200, 

Triangle, VA 22172 

38 FMSHRC Page 2701

ADMINISTRATIVE LAW JUDGE ORDERS
38 FMSHRC Page 2702
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9956 / FAX: 202-434-9949 

 

October 7, 2016 

 

ORDER DENYING MOTION TO STRIKE

This case is before me under section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended (“the Mine Act”), 30 U.S.C. § 815(d), upon two petitions for assessment of 

civil penalties filed by the Secretary of Labor (“the Secretary”) against Consolidation Coal 

Company (“the Respondent”). The case is scheduled for hearing on October 19-20, 2016. 

The Secretary has proposed “specially assessed” penalties for the violations at issue in 

Docket No. WEVA 2015-440. The Respondent has filed a “Motion to Strike, and Motion in 

Limine to Exclude, the Secretary’s Proposed Special Assessment Amount in WEVA 2015-440.” 

Legal Framework 

The Commission holds the authority to assess all civil penalties for violations of the Mine 

Act, but the Secretary may make proposals as to the penalty amount. 30 U.S.C. § 820(i). The 

Secretary has promulgated regulations governing penalty proposals at 30 C.F.R. Part 100. 

Normally, MSHA applies the Secretary’s “regular assessment” formula set forth in 30 C.F.R. § 

100.3 to calculate the amount of a proposed penalty. However, the Secretary permits MSHA to 

waive the regular assessment process if MSHA “determines that conditions warrant a special 

assessment.” 30 C.F.R. § 100.5(a), (b). MSHA calculates special assessments by applying what 

it refers to as the “General Procedures,” a method and formula published on its webpage. See 

Respondent’s Motion, Ex. B. 

The Commission has repeatedly emphasized – most recently in American Coal Company, 

38 FMSHRC _, Nos. LAKE 2011-701 et al., slip op. at 7 (Aug. 26, 2016) – that its 

administrative law judges assess penalties de novo and are not bound by the Secretary’s proposed 

penalties or by the regulations in 30 C.F.R. Part 100. However, substantial deviations from the 

Secretary’s proposed penalties must be explained. Sellersburg Stone Co., 5 FMSHRC 287, 293 

(Mar. 1983) (reaffirmed in Am. Coal Co., slip op. at 8). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CONSOLIDATION COAL COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2015-230 

A.C. No. 46-01433-366908 

Docket No. WEVA 2015-440 

A.C. No. 46-01433-372811 

Mine: Loveridge #22 

38 FMSHRC Page 2703
Parties’ Positions 

 The Respondent contends that MSHA’s General Procedures substantively amend 30 

C.F.R. Part 100 in that they add binding rules that narrowly constrain MSHA’s discretion by 

implementing a points formula which is very similar to the regular assessment formula, but 

which was not subjected to notice-and-comment procedures despite involving larger amounts of 

money, rendering it invalid under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et 

seq. Because the special assessment amounts at issue in this case were calculated pursuant to the 

General Procedures, the Respondent argues they should be stricken from the record, citing 

Drummond Company, 14 FMSHRC 661 (May 1992). The Respondent further argues that the 

proposed penalty amounts are irrelevant to the judge’s de novo penalty determination and are 

therefore inadmissible. To the extent that judges need a baseline penalty in order to explain 

substantial divergences under Sellersburg, supra, the Respondent contends that the regular 

assessment formula should be used. Alternatively, the Respondent suggests that the case should 

be remanded so MSHA can properly explain the proposed penalty. 

 The Secretary requests permission to respond to the Motion to Strike in his post-hearing 

brief. He contends that the issue presented in the Motion is non-dispositive and premature 

because, as a matter of course, issues pertaining to penalties are addressed after hearing. 

Discussion 

 As noted above, Commission administrative law judges possess independent authority to 

assess all contested penalties de novo pursuant to section 110(i) of the Mine Act. 30 U.S.C. § 

820(i); Am. Coal Co., slip op. at 6. Issues pertaining to penalties are best considered and 

addressed when the judge is determining the appropriate penalty amount based on the evidence 

and the criteria set forth in section 110(i) after the case has been heard. Accordingly, I agree 

with the Secretary that the issues presented in the Respondent’s Motion to Strike are not 

dispositive and need not be decided at this stage. 

 The Respondent relies on Drummond to support its argument that I should strike the 

proposed penalty amounts or remand them to MSHA for recalculation. In Drummond, the 

Commission remanded to MSHA a proposed penalty that had been calculated pursuant to a 

Program Policy Letter (PPL) that added a new category of violations to the violation history to 

enhance certain penalties. 14 FMSHRC at 668. This was an interim rule that had not yet been 

subjected to notice-and-comment rulemaking, and its method of calculating penalties conflicted 

with the method set forth in the Secretary’s existing regulations. Id. at 691 (“We conclude that 

the civil penalties proposed in this matter are inconsistent with the existing Part 100 regulations, 

and constitute arbitrary enforcement action.”). 

By contrast, the Secretary now uses 30 C.F.R. § 100.5 as the sole basis for calculating 

special assessments. Section 100.5 was promulgated through notice-and-comment rulemaking in 

accordance with the APA. The provision is broad and leaves discretion to MSHA, but this is as 

Congress intended. See 30 U.S.C. § 820(i); Am. Coal Co., slip op. at 4-6 (describing Secretary’s 

plenary discretion in proposing penalties). The only requirements for special assessments are 

that a narrative must accompany the special assessment and the Secretary must justify the 

38 FMSHRC Page 2704
increased penalty at trial. 30 C.F.R. § 100.5(b); Am. Coal Co., slip op. at 7. Although the 

special assessment is not binding, Sellersburg renders it relevant. I will not use the special 

assessment as a baseline and will consider all of the parties’ arguments as to the appropriate 

penalty, but if my independent penalty calculation deviates substantially from the Secretary’s 

proposal, I must and will explain why pursuant to Sellersburg. 

For the reasons discussed above, the Respondent’s Motion to Strike is DENIED. The 

parties are free to revisit the pertinent issues raised in the Motion at hearing and in their posthearing briefs. 

 /s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

John R. Slattery, Esq., U.S. Department of Labor, Office of the Regional Solicitor, The Curtis 

Center, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106 

Christopher D. Pence, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329 

38 FMSHRC Page 2705
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9956 / FAX: 202-434-9949 

October 17, 2016 

 

ORDER AMENDING CAPTION OF CASE 

ORDER DENYING MOTION TO DISMISS 

ORDER REQUESTING COPY OF ORIGINAL COMPLAINT

This case is before me upon a complaint of discrimination filed by Joshua A. Franks 

against mine operators D&L Weld and Trillium Construction Services, (collectively, “the 

Respondents”), pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

as amended (“the Mine Act”), 30 U.S.C. § 815(c)(3), and upon D&L Weld’s Motion to Dismiss. 

As a preliminary matter, it is ORDERED that the caption of this case is AMENDED to 

change the listed Respondents from “D&L WILD & TRILLIUM CONSTRUCTION, 

Respondent” to “D&L WELD and TRILLIUM CONSTRUCTION SERVICES, Respondents.” 

Procedural Background 

Franks filed his initial discrimination complaint with the Secretary of Labor on February 

25, 2016. After conducting an investigation pursuant to section 105(c)(2) of the Mine Act, the 

Secretary notified Franks by letter dated June 9, 2016 that he had determined there was 

insufficient evidence to find a violation of section 105(c) and that MSHA (the Mine Safety and 

Health Administration) would not be pursuing the case before the Commission on Franks’ 

behalf.1

 

On July 6, 2016, Franks sent the Commission an email requesting appeal of the 

Secretary’s determination, thereby initiating this discrimination proceeding pursuant to section 

105(c)(3). Franks did not attach a copy of his initial February 2016 complaint to his email. The 

Commission immediately sent Franks a letter acknowledging that his case had been docketed 

and directing him to deliver his complaint to the Respondents by certified mail, return receipt 1

 Franks has submitted a copy of this letter which is date-stamped June 9, 2016 and 

appears authentic. D&L Weld has submitted a copy which is missing the headers at the top of the 

page showing MSHA’s and D&L Weld’s addresses, and which bears a blurry, illegible date 

stamp that has been crossed out and replaced with the handwritten notation “Apr. 22.” I accept 

Franks’ proffered copy of the letter as authentic. 

JOSHUA A. FRANKS, 

 Complainant 

 v. 

D&L WELD and TRILLIUM 

CONSTRUCTION SERVICES, 

 Respondents 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2016-261-DM 

MSHA Case No. NE-MD-16-04 

Mine: Nazareth Plant 1 

Mine ID: 36-00190 

Contractor ID: T5E (D&L), Z824 (Trillium) 

38 FMSHRC Page 2706
requested. On August 9, 2016, Franks mailed a letter to both Respondents stating, “I am sending 

this letter to inform you that I disagree with MSHA’s determination and have sought legal 

representation with a labor lawyer.” He did not attach copies of his initial February 2016 

complaint. Neither of the Respondents filed an answer, so the Commission issued a show cause 

order on October 5, 2016. 

On October 12, 2016, Respondent D&L Weld filed an “Answer to Order to Show Cause 

and Motion to Dismiss.” In support of the motion to dismiss, D&L Weld argues that (1) Franks 

did not file for review before the Commission within 30 days of receiving notification of the 

Secretary’s determination not to pursue the case, in violation of 30 U.S.C. § 815(c)(3); (2) 

Franks’ complaint does not include a short and plain statement of facts setting forth the alleged 

discrimination; and (3) Franks failed to properly notice D&L Weld of the initiation of this 

proceeding. 

Discussion 

Section 105(c) of the Mine Act provides that after receiving a discrimination complaint, 

the Secretary shall promptly investigate the complaint and notify the complainant of his 

determination as to whether a violation has occurred. 30 U.S.C. § 815(c)(3). If the Secretary 

determines that 105(c) has not been violated, “the complainant shall have a right, within 30 

days[’] notice of the Secretary’s determination, to file an action in his own behalf before the 

Commission.” Id. The Commission has repeatedly held that the time limits to file Mine Act 

cases, including the time limits set forth in 105(c)(3), are not jurisdictional and that failure to 

meet them should not result in dismissal absent a showing of material legal prejudice. See, e.g., 

Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386-87 (Dec. 1999); Sec’y on behalf of Nantz v. 

Nally & Hamilton Enters., 16 FMSHRC 2208, 2215 (Nov. 1994); see generally Long Branch 

Energy, 34 FMSHRC 1984 (Aug. 2012) (discussing prejudice). 

In this case, Franks’ appeal request was timely filed with the Commission within the 30-

day time limit set forth in section 105(c)(3). It was received via email on July 6, 2016, less than 

30 days after the Secretary sent his June 9, 2016 letter notifying Franks of his decision not to 

pursue the claim. 

Regarding notice, although Franks’ August 9, 2016 letter notifying D&L Weld of his 

intent to appeal does not specifically say that he filed a case with the Commission, I find that 

D&L had notice of the initiation of this proceeding within a reasonable amount of time. D&L 

was given the opportunity to contest the claim, which it has now done. Even to the extent D&L 

was not placed on notice of the claim within the time limits contemplated in the Act, the motion 

to dismiss has not been justified by a showing of material legal prejudice. It is true that Franks’ 

August 9, 2016 letter does not recite the factual basis for his complaint or include a copy of the 

original February 2016 complaint, which may not be in his possession if he sent his only copy to 

MSHA. However, these deficiencies can be remedied by asking Franks to obtain a copy of the 

original complaint and file it with the Commission rather than by taking the drastic measure of 

dismissal. See Ribble v. T&M Development, 22 FMSHRC 593, 594-95 (May 2000) (making it 

clear that motions to dismiss for failure to state a claim are disfavored, especially when pro se 

parties are involved); Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1920 (Nov. 

38 FMSHRC Page 2707
1996) (same). In addition, D&L Weld is likely already aware of the general factual allegations 

underpinning Franks’ discrimination claim, as the motion to dismiss includes a redacted copy of 

the original complaint and a copy of the position statement D&L sent to MSHA disputing the 

factual basis for the claim. 

For the reasons discussed above, I find that Franks substantially complied with section 

105(c)(3). Accordingly, Respondent D&L Weld’s motion to dismiss is DENIED. 

 Joshua Franks is ORDERED to send the Commission and both Respondents a legible, 

non-redacted copy of his original February 2016 complaint within ten (10) days of receiving 

this Order. If he does not have a legible, non-redacted copy of the complaint, he should contact 

MSHA to obtain one. 

 Franks is also directed to provide my office with his current telephone number and email 

address, if he uses email. This information should be provided to my clerk, Elizabeth Katona, at 

202-434-9956 or ekatona@fmshrc.gov. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Joshua A. Franks, 13203 Polly Road, Pleasanton, KS 66075 

Rebecca J. Oblak, Esq., Bowles Rice, LLP, 7000 Hampton Center, Morgantown, WV 26505 

Kevin McCarthy, Esq., General Counsel, Trillium Construction Services, 5555 Gull Road, 

Kalamazoo, MI 49048 

38 FMSHRC Page 2708
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 25, 2016 

 

ORDER OF DISMISSAL 

 Jerritt Canyon Gold, LLC (“JCG”) (FKA WBVG, LLC) filed a motion to reopen 

bankruptcy proceedings related to the Veris Gold USA, Inc. case for the purpose of enforcing the 

sale order and related injunction and seeking sanctions. Three attorneys appeared before 

bankruptcy court Judge Gregg W. Zive on August 11, 2016 in support of the motion.1 The 

motion also sought to shorten the time for the Mine Safety and Health Act (“Mine Act”) 

discriminatees Daniel Lowe and Matthew Varady to respond to the motion. The motion to 

shorten the response time was filed on August 4, 2015 and granted the following day by Judge 

Zive. A proceeding before Judge Zive ensued on August 11, 2016; the Judge expressed at the 

                                                             1

 Local counsel appeared for JCG, as did an attorney with Dorsey& Whitney, out of Salt 

Lake City, and a third attorney with Fennemore Craig PC, out of Phoenix, on behalf of Wbox 

2014-1 LTD, opposing the two pro se non-attorney complainants in the Mine Act discrimination 

proceedings, Mr. Daniel Lowe and Matthew A. Varady. Mr. Lowe’s Mine Act docket number is 

listed in the caption. Mr. Varady’s Mine Act discrimination docket number is WEST 2014-307. 

A separate order will be issued, mirroring this one, but substituting Mr. Varady’s name and the 

docket number for his case. 

DANIEL B. LOWE, 

 Complainant, 

 v. 

VERIS GOLD USA, INC., 

 and 

JERRITT CANYON GOLD, LLC, 

 Respondents. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 2709
outset that he was greatly concerned that there were proceedings being conducted in another 

administrative forum that were violative of Section 362(a) of the bankruptcy code.2

 Motion Tr. 4. 

 As noted, in its motion, Jerritt Canyon also sought sanctions against the Mine Act 

Complainants. Judge Zive announced near the end of the hearing that he was not going to 

sanction Lowe and Varady, but he then warned, “But you’ve got to stop. . . . No. You’re 

stopping. You’re not going to go anymore. You’re not going to go before Judge Moran or any 

other - - you’re stopping regarding any attempt against successor liability, because it’s not 

allowed pursuant to the order that’s final.” Motion Tr. 45-46. After acknowledging that he would 

not tell any Administrative Law Judge what to do and that it would be inappropriate to do so, the 

Judge distinguished his authority over Lowe and Varady, stating that he does have jurisdiction 

over them, and adding “You will not do anything more. If you do, than I [ i.e. Judge Zive] 

would have to consider monetary sanctions because now I’ve put you on notice.”3

 Tr. 46 

(emphasis added). 

 With the threat of imposing sanctions if Lowe and Varady continued to pursue damages 

for the acts of discrimination by Veris, and potential successor Jerritt Canyon Gold, this Court 

cannot put the pro se, non-attorney Complainants in financial jeopardy. Therefore, it is 

dismissing their claims and hopes, but does not order, that neither Lowe nor Varady appeal this 

                                                             2

 11 U.S.C. §362 is the automatic stay provision of the Bankruptcy Act. As the case had 

been closed, there was no existing automatic stay. Therefore, the case first had to be reopened by 

the bankruptcy court. In relevant part, §362 provides, “(a) Except as provided in subsection (b) 

of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed 

under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, 

applicable to all entities, of — (1) the commencement or continuation, including the issuance or 

employment of process, of a judicial, administrative, or other action or proceeding against the 

debtor that was or could have been commenced before the commencement of the case under this 

title, or to recover a claim against the debtor that arose before the commencement of the case 

under this title.” 11 U.S.C. §362(a). 

3

 Judge Zive’s warning that he would consider imposing monetary sanctions against 

Lowe and Varady are of concern because, apart from the automatic stay provision, the Court 

does not know of the Judge’s authority to effectively stop a proceeding in another tribunal. The 

Judge even seemed to contradict himself, telling Lowe and Varady that if they think, “the orders 

that are entered as a result of today’s hearing are incorrect, you have a remedy. You can ask a 

court to review them. I am not the final word. I can, and often do, make mistakes. But you don’t 

get to go to the [Mine Review] [C]omission. You need to exercise the remedies that are provided 

by the Bankruptcy Code and the appellate rules statutes.” Tr. 46-47. Yet, later he acknowledged 

that the decision in Gruntz, “indicated that parties may request a state court or other forum to 

make a determination if there has been a violation of the stay, but they run the risk of the state 

court getting it wrong. And if the state court gets it wrong or administrative law judge gets it 

wrong, all the proceedings and any orders entered are void.” Tr. 9. Per, n. 12, infra the Judge’s 

reference to “Gruntz” was likely a cite to 202 F.3d 1074 (9th Cir. 2000). Ironically, although the 

dicta in Gruntz certainly supports the Judge, the state court got it right that the automatic stay did 

not void its criminal judgment. Id. at 1088. 

38 FMSHRC Page 2710
Court’s dismissal. The Complainants’ determination of whether to bring an appeal is strictly 

theirs to make. 

This Court’s Order of Dismissal does not necessarily mean that Lowe’s and Varady’s 

Mine Act cases are terminated, because the Commission may, pursuant to 29 C.F.R. §2700.71, 

review this Court’s decision on its own motion.4 In the event that the Commission opts to review 

this dismissal, Lowe and Varady could not be held accountable or subject to the threat of 

monetary sanctions being imposed by Judge Zive. 

The August 11, 2016 Hearing Before Judge Zive 

At the outset of the hearing, Judge Zive noted that Veris sought bankruptcy protection in 

a Canadian court on June 9, 2014, under Chapter 15 of the United States Bankruptcy Code. Tr. 4. 

On May 22, 2015, a Motion for entry of an order to recognize and enforce the Canadian sale 

order was made. Tr. 15. The sale was pursuant to Section 363 of the Code and the Judge 

remarked that provision has all of the due process protections as section 1141 of the Code.5 The 

Judge assumed that the financier, “got some money together, formed this entity, and bought it,” 

adding that none of the creditors, secured and unsecured, got paid. Tr. 16. Thus, the Judge stated 

that if Lowe and Varady had a judgment they would not have been paid.6 Tr. 16. 

On May 29, 2015 the Judge entered a sale order. The Judge stated he was aware that 

there was a Section 364 first position lien to the debtor in possession (“DIP”) lender, (variously 

referred to as “WB,” “Whitebox,” “Wbox 2014-1”), meaning that the DIP had priority over any 

other secured interests. The Judge noted that Whitebox advanced $15 million and created an 

entity known as WBVG, Inc. LLC, which then, on June 5, 2015, changed its name to Jerritt 

Canyon Gold, Inc., and the transaction closed on June 24, 2015. Tr. 19. Eighty percent (80%) of 

                                                             4

 The section provides: “At any time within 30 days after the issuance of a Judge's 

decision, the Commission may, by the affirmative vote of at least two of the Commissioners 

present and voting, direct the case for review on its own motion. Review shall be directed only 

upon the ground that the decision may be contrary to law or Commission policy or that a novel 

question of policy has been presented. The Commission shall state in such direction for review 

the specific issue of law, Commission policy, or novel question of policy to be reviewed. Review 

shall be limited to the issues specified in such direction for review.” 20 C.F.R. 2700.71 

5

 Not everyone agrees with the Judge’s view that the due process protections under 

section 363 are the same as section 1141. See this Court’s Order on Complainant’s motion to 

amend, 38 FMSHRC 565, 578, n. 9 (citing George W. Kuney, “Misinterpreting Bankruptcy 

Code Section 363(f) and Undermining the Chapter 11 Process,” 76 Am. Bankr. L.J. (2002), and 

“Why Successor Liability Claims are not ‘Interests in Property’ under Section 363(f),” 18 Am. 

Bankr. Inst. L. Rev. 697 (2010)). 

6

 The Judge’s remark that Lowe and Varady “would not have been paid” implicitly refers 

to Veris. That is most certainly true, but the Mine Act’s successorship law would inquire whether 

Jerritt Canyon could be held accountable. For that entity, the Judge invoked his ruling that no 

successor would be liable. 

38 FMSHRC Page 2711
the interest in Jerritt Canyon Gold was transferred to Canadian billionaire7

 Eric Sprott. Tr. 19. 

The DIP, Wbox 2014-1, had the remaining 20% interest in the mine. Continuing with his 

recounting of the events, Judge Zive stated that the Canadian sale order occurred on May 28 

[2015] and that he issued his order on June 4th [2015]. Tr. 19. The Judge stated that those orders 

clearly provided there would be no successor liability.8 Tr. 19. The Judge stated that, on June 

18th, a motion to stay was filed by Lowe, Varady and others but that, as judgment had been 

entered for the Respondent on September 9, 2014, this was “well after” the complaints filed by 

Lowe and Varady and therefore their complaints were pre-petition. Tr. 20. 

The Judge found that there was neither a legal nor a factual basis for a stay of the U.S. 

sale order and that Lowe and Varady had not complied with the proper procedure and that they 

had failed to provide any authority for the relief they sought. Tr. 22. On September 2, 2015 the 

case was closed. The Judge stated that in a liquidating Chapter 11 there is no discharge and that 

Lowe and Varady’s claims can’t be satisfied by the “purchaser or anybody subsequent because 

the injunction found in the sale order, which is a final order entered in the bankruptcy case when 

it was open, precludes it.” Tr. 24. 

 Addressing this Court’s comment about the appearance of fairness in allowing Lowe and 

Varady, to determine through discovery the status of Jerritt Canyon as a successor, the Judge 

stated, 

[w]ell, a couple points. Jerritt Canyon was the buyer, the successor. The point is it 

was the purchaser. What did it purchase? Their assets. But even if it is, it is of no 

legal significance because there's no successor liability.” 

Tr. 27. 

 

                                                             7

 Marianne Kobak McKown, Going Private: Canadian billionaire buys Jerritt Canyon, 

ELKO DAILY FREE PRESS, June 26, 2015, available at http://elkodaily.com/mining/canadianbillionaire-buys-jerritt-canyon/article_605d9414-8871-5695-878c-4c430c230929.html. 

8

 The Judge, who stated that he had “some experience with mining,” added, “I will 

confess now. When I was a lawyer many, many years ago, I actually did work for Dee Gold and 

for Barrick -- no, I didn't do -- but for Newmont,” and expressed an upside to the sale as it 

“allow[ed] this operation to go forward, which protected the jobs of the miners and, of course, 

provided related economic benefit in the communities near the mine site.” Tr. 41, 6. This 

suggested that the gold at Jerritt Canyon might otherwise be left unmined, an unlikely event. 

Further, the multiple discrimination complaints filed against Veris were equally important to 

“protecting the jobs of the miners.” Around the time of those discrimination complaints, Veris 

was also being reviewed to determine if it should be subject to a pattern of violations charge by 

the Secretary of Labor. 

38 FMSHRC Page 2712
The Judge continued that, as for this Court’s suggestion to Lowe and Varady in advance 

of their appearance before the Judge, that they be allowed to have full discovery regarding the 

principal stock holding officers of these various entities, 

there's no point to that. Even if it was appropriate, and it's not, there's no successor 

liability. There's no point to let the proceeding before the Federal Mine Safety and 

Health Review Commission to continue to determine if Jerritt is the successor 

because once again, there's no successor liability.9

Tr. 27- 28. 

The Judge stated that, 

[y]our choice is not to do anything or to ask the bankruptcy court to get relief 

from the stay so that you can proceed with your claim, and then the court would 

look at your pleadings and any opposition and make a decision. Happens all the 

time in bankruptcy cases, where we will allow folks that have been injured in 

automobile accidents or states or counties that have suffered environmental 

damage. 

Tr. 31-32. 

The Judge continued, 

Then I would have made a decision. Unfortunately, it probably wouldn't have 

made much economic difference to you -- and this is what I'm really trying to get 

across – because there is -- and none of the other debtors had any ability to satisfy 

your claim. I'm not saying that you weren't discriminated again. That's not what 

I'm saying at all. What I'm saying is that even if you were able to get some type of 

damages, that you couldn't collect it from the debtors. There is no money. That's 

why Wbox 214 [sic] made a credit bid and Deutsche Bank didn't overbid. That's 

why there were millions and millions and millions of dollars lost in this enterprise 

and lost forever. And there's also a provision under 363 of the Code that allows 

sales of asset to occur if that's in the best interest of both the creditors and the 

debtor. And that was the findings (sic) made by both the Canadian judge and me. 

You're being treated exactly the same as every other unsecured creditor in this 

case. 

Tr. 32-33. 

                                                             9

 With discovery on the issue of successorship barred, the Judge’s determination means 

that the financial relationships, if any, between those who had interests in Veris Gold and Jerritt 

Canyon Gold will never be known and inquiry into the monitor’s acknowledgement that “[w]hile 

the DIP Lender's lack of support for the various EOIs might be perceived as a potential conflict 

of interest, the Monitor remains of the view that the Credit Bid Transaction is the appropriate 

course of action at this late stage of the proceedings,” will similarly not be known. Id. at para. 39; 

2016 WL 4158375 at *7. The Court is unaware of any on the record discussion by the 

bankruptcy court inquiring into the potential conflict of interest alluded to by the Monitor. 

38 FMSHRC Page 2713
The Judge acknowledged that Lowe had a judgment but that, “it’s void - - it may be void 

ab initio as a result of a violation of Section 362 of the Bankruptcy Code.” Tr. 36. The Judge did 

allow that “[t]he United States Courts of Appeal say the bankruptcy courts make that, and you... 

the Gruntz case, which dealt with a state court action, said the state court judgment entered its 

opinion, but if the state court judge gets it wrong, the parties are at their own peril.” Tr. 36. The 

Judge offered that, “you [Lowe and Varady] probably should have got stay relief.” Tr. 37. The 

Judge also remarked, “But every other creditor in this case didn't get paid, and you're in exactly 

the same position. . . . And they didn't do anything wrong either.” Tr. 39. The Judge also 

remarked, 

if you want to proceed in another forum, in another place, and there's no 

exception to the stay, which I believe there isn't in this case -- and I understand 

there may be some disagreement with that, that's fine. But then you need to seek 

relief from this court. And the prudent measure -- and the Ninth Circuit has -- . . . 

has indicated that whenever there is even a doubt whether or not you need to seek 

relief, seek relief from the stay. 

Tr. 40. 

 The Judge continued, 

My point is this. When those cases were filed, everybody was given the same 

notice you were given. And claims can be discharged, and if there's a sale of 

assets, it generally does not allow successor liability, which is allowed pursuant to 

Section 363 of the code. And there are lots of cases dealing with discrimination -- 

TWA was a discrimination case, if I remember correctly. . . . And those were 

flight attendants, I think. . . . And those claims went away. And that's the result. 

People lose their pensions in bankruptcy court. It's no -- one takes no pleasure in 

that, but that is how Congress has written the statute for policy reasons that it 

believes are paramount, and I don't get to wave a magic wand and ignore them, 

and the United States Supreme Court Law v. Siegel case about a year and a half, 

two years ago made that clear. . . . Everybody says the bankruptcy court is a court 

of equity. In a sense we are, but that doesn't mean we just get to say, well, this 

would be fair, and therefore I get to do it. 

Tr. 41-42. 

And still later, the Judge told Lowe and Varady, “if you think I'm wrong and you 

want to go to another court and tell the other court your position -- . . . you can do that. . . 

. And that's what you -- what I'm really trying to tell you is that's what you should have 

done last June.” Tr. 47. 

Following those remarks, the Judge stated, 

I'm granting the motion to reopen. I'm going to grant the motion to enforce my 

sale order. And I'm going to make it clear if it wasn't clear in the order itself. 

There's an injunction against any attempt to proceed regarding successor liability 

because successor liability is specifically prohibited by the terms of the sale order. 

And I'm going to instruct counsel for Jerritt Canyon to provide written findings 

38 FMSHRC Page 2714
and conclusions...What it means is I've reopened the bankruptcy case. . . . That's 

why we have two motions. . . . first, I have to open the case. If I don't reopen the 

case, then I can't enter the order to enforce my earlier sale order. So I'm granting 

the motion to reopen under Section 350, and I find good cause exists. Then I'm 

granting the motion to enforce the order no success liability and injunction 

precluding, preventing, stopping [Varady] and Mr. Lowe from proceeding in any 

other forum regarding successor liability. 

Tr. 58-59. 

He concluded, “I put Mr. Lowe and Mr. Varady on notice that if they violate my order, I 

will enforce it with monetary sanctions.” Tr. 60. 

Following the August 11, 2016 hearing, on September 2, 2016, Judge Zive issued his 

order affirming his remarks at that hearing.10

Accordingly, as discussed above, the Court feels it has no option but to dismiss this 

proceeding. Despite the outcome, the Court believes that further discussion is warranted. 

Discussion

 Judge Zive noted at the outset of the proceeding that he was aware of the discrimination 

complaints brought by Lowe, Varady and others. However, he then proceeded to state that he 

would “make the record now, Administrative Judge Moran had telephoned [him] while the case 

was pending, asking if [he] was aware of these [discrimination] claims.” Motion Tr. 5.11 The 

Judge12 couldn’t remember exactly what he told Judge Moran, nor did he take any notes, but he 

“remembered distinctly” telling this Court that he could not provide any legal advice, that it 

would be inappropriate to do so and that the discrimination complainants should obtain legal 

counsel, but that “[a]pparently that advice was not heeded.” Id. 

 

 

                                                             10 The Judge’s order, at his direction, was created by counsel for Veris/JCG and adopted 

by the Judge who inserted his signature. 

11 To be clear, the references are to Judge Zive’s statements during his August 11, 2016 

motion hearing. 

12 All references to the “Judge” in this Order of Dismissal refer to Judge Zive. References 

to the “Court” refer to the undersigned author of this Order, Judge William Moran. 

38 FMSHRC Page 2715
The problem with Judge Zive’s multiple references to speaking with this Court in the 

transcript of his proceeding on Jerritt Canyon’s motion is that such conversations never

occurred.13

Upon reading the transcript and Judge Zive’s multiple references to alleged conversations 

with this Court, it was necessary, on August 16, 2016, for the Court to send the Judge a letter 

calling attention to his multiple, egregious factual errors in asserting that there had been such 

communication. This Court informed the Judge that there had never been any sort of 

communication between Judge Zive and this Court. The letter advised, 

Judge Zive, you are mistaken. I have never called you, never spoken with you and 

never emailed you. Perhaps you spoke on some prior occasion with another 

administrative law judge, on that I can only speculate, but there has never been 

any conversation or any form of communication between us and, in the name of 

accuracy, I call upon you to correct the record on this score.14 

Judge Zive recounted that he presided at the hearing to recognize the sale order, which 

had been approved by the Canadian court, and that he inquired of counsel for the debtor if they 

were aware of the discrimination claims and that he was “told yes and they were being handled.” 

Id. Noting that those discrimination complaints were brought by individuals and not by “any 

governmental body or regulatory agency,” the Judge stated that the automatic stay provision at 

Section 362(b)(4) appeared inapplicable.15 Id. at 5-6. The Judge then noted that the bankruptcy 

                                                             13 The Judge made several other references during his hearing, claiming to have spoken 

with Judge Moran. Among those errors at transcript page 12, the Judge states: “or Judge Moran - 

- I think that’s how he’s referred to is Administrative Judge Moran - - who I already indicated 

that I talked to, seems like a very nice man - - responded to Mr. Lowe on August 8th.” Tr. 12. 

Later, the Judge remarked in the context of advice, “And that’s why I told Judge Moran he 

should tell you folks to get a lawyer.” Tr. 14. “And that’s why when Judge Moran called me 

some time ago, I - - as I do in every one of these cases, without exception, I strongly urged him 

to advise you, if that’s what he was going to do - -.” Tr. 34. As noted, the Judge never spoke 

with this Court at any time before his August 11, 2016 hearing and the only communication after

that hearing was the Judge calling this Court to apologize for his errors. 

14 To his credit, Judge Zive called this Court, twice, the same day the letter was sent to 

him. He apologized for his errors and advised that the record in his case would reflect his errors 

and include this Court’s letter to him. Judge Zive’s errors were not limited to knowing whom he 

spoke with, as he twice referenced that “the solicitor general of the United States disagrees with 

[Lowe’s] position” about miners being the most precious resource and that the bankruptcy court 

disregards the Mine Act. Tr. 33 (emphasis added). It is the Solicitor of Labor that took issue with 

this Court’s view, not the Solicitor General of the United States. 

15 Though not providing any specific case citations, the Judge stated, “there are a number 

of cases finding that dealing with asbestos cases, dealing with SEC cases, dealing with 

complaints regarding remediation of environmental hazards,” in support of his statement that the 

automatic stay provision was applicable. Motion Tr. 6. 

38 FMSHRC Page 2716
court retains jurisdiction to determine if the automatic stay provision applies.16 Id. at 6. Upon 

review of all the pleadings, the Judge concluded, “there was no money and [he] was satisfied that 

that was the situation and obviously so was the judge in Canada.” Id. at 6-7. 

 Judge Zive then noted that the “sale order that was entered clearly provides that there will 

be no successor liability for the purchaser,” and that a “new entity was formed before the 

transaction closed on June 24th.” Id. at 7. The Judge then added that no request to seek relief to 

allow the discrimination claims to proceed in the administrative forum was made and that, apart 

from whatever the merits may be, it was the process that was not followed. Id. Judge Zive then 

continued that, 

astoundingly, it would appear that the failure to follow that process was being 

advocated by an administrative law judge who, so far as [the Judge] [could] 

determine, has an obligation to be fair and impartial, and yet is clearly providing 

legal advice to at least two of the claimants, notwithstanding the disclaimer that 

he was not doing so. [The Judge didn’t] know how anyone who could be opposed 

or on the other side of the discrimination claims could believe that they were 

going to get a fair hearing when [one] read[s] emails indicating that the 

 

                                                             16 The Judge stated this was not new law, and noted without specific citation, that one 

“can go back to 2002 and look at the Gruntz case.” Motion Tr. at 6. The Judge was apparently 

referring to In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), in which the Ninth Circuit addressed 

“(1) whether a state court modification of the bankruptcy automatic stay binds federal courts; and 

(2) whether the automatic stay enjoins a criminal prosecution for the willful failure to pay child 

support. We hold that federal courts are not bound by state court modifications of the automatic 

stay, but that the automatic stay does not enjoin state criminal prosecutions.” Id. at 1077. Judge 

Zive’s expression of the holding in Gruntz is that “parties may request a state court or other 

forum to make a determination if there has been a violation of the stay, but they run the risk of 

the state court getting it wrong. And if the state court gets it wrong or administrative law judge 

gets it wrong, all the proceedings and any orders entered are void.” Id. at 9 (emphasis added). 

Ultimately the Judge may be correct but this Court is not aware of any decision by a federal 

district or bankruptcy court holding that Mine Act discrimination proceedings, with its unique 

anti-discrimination provisions, are subject to the automatic stay. 

38 FMSHRC Page 2717
administrative law judge is providing advice and - - to those claimants that are 

before him and telling them how to proceed in this [Judge Zive’s] court.17 

Id. at 7-8. 

 It is difficult to know where to begin with Judge Zive’s comments. First, fair hearings on 

the issue of liability had occurred; the decisions upholding the discrimination complaints of Mr. 

Lowe and Mr. Varady had long ago been decided by this Court: October 15, 2015 in the case of 

Mr. Lowe, 2015 WL 6447553, and September 2, 2015, in the case of Mr. Varady, 2015 WL 

5307780. In the Varady matter, defense counsel hired by Veris appeared before this Court. When 

the evidence at that hearing made it plain to all that Varady was the victim of discrimination, 

Veris folded its tent and its counsel withdrew. The same counsel then announced at the outset of 

the Lowe discrimination complaint the week following the Varady hearing, that it was 

withdrawing any defense to the Lowe matter as well. However, the damages phase has never 

occurred for either complaint. Consequently, no amount of damages has been determined for 

either complainant. 

As to the Judge’s assertion that this Court was “clearly providing legal advice to at least 

two of the claimants, notwithstanding the disclaimer that [it] was not doing so,” there are two 

points to be made. The Court made it plain when communicating with the non-attorney pro se 

complainants, Lowe and Varady, about the motion they faced by Veris to reopen the bankruptcy 

case, that its comments were in response to Mr. Lowe’s communication to this Court upon being 

informed of the Veris motion before the bankruptcy court. Far from providing legal advice, the 

Court noted: 

If [the Court] were in [Lowe’s] position, when eventually before the Bankruptcy 

Court, [the Court] would make the following points before that Court, all as 

expressed in the various orders/decisions this Court has issued in your 

discrimination proceeding before the Federal Mine Safety and Health Review 

Commission. You should not view the points which follow as restricting the 

contentions that you may make at the Bankruptcy Court hearing, as you may have 

other arguments to present before that court. I would also provide the Bankruptcy 

                                                             17 The Judge apparently believed that this Court’s guidance to the pro se, non-attorneys 

Lowe and Varady, demonstrated unfairness. “I don't know who would want to go now in front 

of, frankly, Judge Moran once he's provided the assistance to you he's provided to you. I would 

hate to be sitting on that other side of the table, representing somebody else against you folks at 

this point, candidly. That's why I was surprised when I saw those emails.” Tr. 28. The Judge 

apparently forgot that liability had already been decided in both cases, with Varady’s case 

decided after a full and fair hearing with Veris’ counsel conducting extensive discovery and full 

participation in the Varady hearing and then quitting participation on the eve of the Lowe 

hearing. Further, the Court’s emails, all sent to both sides, informed that no determination had 

been made on the successorship question, nor had damages of any amount been determined. Full 

participation would have been provided by the Court on the issues of successorship and 

damages. Further, while Lowe and Varady offered preliminary thoughts about their claimed 

damages, this Court has never ruled on those issues and noted that some of those claims were not 

cognizable under the Mine Act. Those issues remain undecided even today. 

38 FMSHRC Page 2718
Court with copies of all orders/decisions issued by this Court as well as those 

issued by Mine Act Judge David P. Simonton and the related Mine Review 

Commission’s issuances. 

August 8, 2016 email to Mr. Lowe, which email also copied the various Veris/Jarrett Canyon 

attorneys (emphasis added). 

 That the Court referenced its prior orders to the pro se complainants to assist them before 

the daunting prospect of facing multiple lawyers for Veris, Jerritt Canyon Gold, and Wbox 2014-

1 LTD did not amount to providing legal advice. The Court considers it as its duty, in fact views 

it as part of its responsibility that essential justice be provided, to provide a pro se litigant with 

clarification on the significance of its decisions and the nature of the proceedings they face. 

Every person has a fundamental right to access justice through a fair, impartial, and meaningful 

hearing, regardless of whether they are represented by counsel. In particular, judges have an 

ethical duty to be both impartial and fair. Model Code of Judicial Conduct Canon 2 (1997) 

(hereinafter MCJC). Pro se litigants often find it particularly difficult to navigate complex legal 

and procedural issues while attempting to obtain a full hearing on the merits of their dispute. 

Therefore, judges have the power to make reasonable accommodations in the courtroom to 

ensure that pro se litigants are not unfairly hindered in exercising their Constitutional right to a 

fair hearing. The MCJC was revised in 2007 to clarify, “it is not a violation of [the canon of 

impartiality] for a judge to make reasonable accommodations to ensure pro se litigants the 

opportunity to have their matters fairly heard.” Comment 4 to MCJC. 

There is not yet comprehensive guidance on what specific accommodations are 

“reasonable,” or what accommodations are prohibited. Jona Goldschmidt, Judicial Assistance to 

Self-Represented Litigants, 17 Mich. St. J. Int'l L. 601, 608 (2009). When confronted with this 

issue, the Supreme Court of West Virginia held, 

 The fundamental tenet that the rules of procedure should work to do substantial 

justice . . . commands that judges painstakingly strive to insure that no person’s 

cause or defense is defeated solely by reason of their unfamiliarity with 

procedural or evidentiary rules. . . . Cases should be decided on the merits, and to 

that end, justice is served by reasonably accommodating all parties, whether 

represented by counsel or not. This “reasonable accommodation” is purposed 

upon protecting the meaningful exercise of a litigant’s constitutional right of 

access to the courts. 

Blair v. Maynard, 324 S.E.2d 391 (West Virginia 1984). 

 The Court considers it no less than a judicial obligation to provide pro se parties with 

reasonable assistance. Needless to say, “this requires a balancing of the rights of both parties.” 

The Role of the Judge in Pro Se Litigation, 10 No. 6 Divorce Litigation 115 (1998). There is an 

important difference between judicial neutrality and judicial passivity, especially in the pro se 

context when justice occasionally demands judicial engagement, in service of true neutrality, to 

balance out the disadvantages of only one party having the benefit of counsel. Richard Zorza, 

Esq., The Disconnect Between the Requirements of Judicial Neutrality and Those of the 

Appearance of Neutrality When Parties Appear Pro Se: Causes, Solutions, Recommendations, 

and Implications, 17 Geo. J. Legal Ethics 423 (2004). The Court’s task of balancing the judge’s 

38 FMSHRC Page 2719
function as an impartial arbiter against the “necessity that the pro se litigant’s case be fully and 

competently presented” is sometimes a difficult one. ABA Standards, Commission on Standards 

of Judicial Administration, Trial Courts § 2.23 at 45-47 (1976).

18 

 Judge Zive then proceeded to note that the discriminated former employees of Veris had 

been before him earlier when seeking to stay the sale order, and that they were creditors and that 

their claims existed prior to the bankruptcy petition, citing the definition of a creditor as an 

“entity - -and that includes an individual19 - - that has a claim against the debtor that arose at the 

time of or before the order for relief concerning the debtor.” Id. at 8. 

 The Court certainly respects the jurisdictional expressions made by Judge Zive, but it 

does not believe that this Court’s perspective is as unsound as the Judge asserted. That the 

subject of discrimination claims and their interface with bankruptcy protection is a thorny issue 

has been recognized by others: 

Bankruptcy courts, facing a surge in claims stemming from employment 

discrimination, are slowly exploring the impact of this area of law on case 

administration. An inherent conflict exists between the policies underlying 

employment discrimination and bankruptcy laws. On the one hand, employment 

discrimination laws seek to protect employees by making them whole for losses 

suffered, while at the same time deterring management from discriminating again. 

Conversely, the bankruptcy reorganization process stresses rehabilitation of the 

debtor and equality of distribution among the claimants. Although the Bankruptcy 

Code (the “Code”) affords some protection to victims of discrimination, their 

claims are not afforded special treatment under the bankruptcy laws. Low dollar 

distributions on discrimination claims eviscerates the rehabilitative and deterrent 

goals of Title VII of the Civil Rights Act of 1964 and state discrimination statutes. 

The swelling tide of insolvencies involving parties to discrimination lawsuits 

warrants an analysis of both the treatment of employment discrimination claims in 

bankruptcy and the impact of these claims on the bankruptcy process... and the 

ability to exempt employment discrimination claims in bankruptcy. 

Joanne Gelfand, The Treatment of Employment Discrimination Claims in Bankruptcy: 

Priority Status, Stay Relief, Dischargeability and Exemptions, 56 U. Miami L. Rev. 601, 

602 (April 2002). 

 Although the Discrimination Claims in Bankruptcy article refers to the automatic 

stay provision, 11 U.S.C. §362 and acknowledges that it does not apply “to stay the 

                                                             18 See also, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se 

Litigant, 27 J. Nat’l Ass’n Admin. L. Judiciary 447, Fall 2007. 

19 11 U.S.C § 101, provides, at section (10) that the term “creditor” means — (A) entity 

that has a claim against the debtor that arose at the time of or before the order for relief 

concerning the debtor;(B) entity that has a claim against the estate of a kind specified in section 

348(d), 502(f), 502(g), 502(h) or 502(i) of this title; or (C) entity that has a community claim. 

Section (15) provides that the term “entity” includes person, estate, trust, governmental unit, and 

United States trustee. 

38 FMSHRC Page 2720
commencement or continuation of proceedings by governmental units to enforce their 

police or regulatory power or to enforce nonmonetary judgments,” this Court finds it 

difficult to distinguish a Section 105(c)(3) proceeding from a Section 105(c)(2) 

proceeding, simply because the government launches the latter. 

This view arises because Congress did not establish a (c)(3) action as a lesser 

claim and by providing such an action for an individual to pursue it was effectively 

enforcing the governmental regulatory power through the individual. Congress foresaw 

that the agency may get it wrong and therefore created the alternative, but equal, avenue 

for relief against acts of discrimination against miners. In that respect the Section 

105(c)(3) action is arguably unique among discrimination claims and can be viewed as 

indistinguishable by Congress’ inclusion of the provision. 

In addition, Veris proceeded to defend against Mr. Varady in the hearing before 

this Court. It was only when it was beyond cavil that Veris would not prevail that it 

packed up and left the Varady proceeding and quickly thereafter bailed from the Lowe 

discrimination complaint. 

Conclusion 

For the reasons set forth above, the Court hereby DISMISSES the discrimination 

claim brought by Daniel B. Lowe. 

SO ORDERED. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

38 FMSHRC Page 2721
Distribution:

Danielle B. Lowe, P.O. Box 2609, Elko, NV 89801, danny.lowe@icloud.com

Matthew A. Varady, 701 S. 5th Street, #6, Elko, NV 89801, Urandonk406@gmail.com

Mark Kaster, Esq., Dorsey & Whitney, LLP, 1500 South 6th Street Minneapolis, MN 55402, 

Kaster.mark@dorsey.com 

Annette Jarvis, Esq., 136 South Main Street, Suite 1000, Salt Lake City, UT 84101, 

Jarvis.annette@dorsey.com 

Cathy L. Reece, Esq., Fennemore Craig, P.C. 2394 East Camelback Road, Suite 600 Phoenix, AZ 

85016, creece@fclaw.com 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Tevia Jeffries Dentons, Canada LLP, 250 Howe Street, 20th Fl. Vancouver, BC V6C 3R8, 

Canada 

Brad J. Mantel, Esq. Office of the Solicitor, U.S. Department of Labor 201 12th Street, South, 

Suite 401 Arlington, VA 22202-5450, mantel.brad@dol.gov 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th Street,

South, Suite 401, Arlington, VA 22202-5450

38 FMSHRC Page 2722
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 28, 2016 

 

ORDER OF DISMISSAL 

 Jerritt Canyon Gold, LLC (“JCG”) (FKA WBVG, LLC) filed a motion to reopen 

bankruptcy proceedings related to the Veris Gold USA, Inc. case for the purpose of enforcing the 

sale order and related injunction and seeking sanctions. Three attorneys appeared before 

bankruptcy court Judge Gregg W. Zive on August 11, 2016 in support of the motion.1 The 

motion also sought to shorten the time for the Mine Safety and Health Act (“Mine Act”) 

discriminatees Matthew Varady and Daniel Lowe to respond to the motion. The motion to 

shorten the response time was filed on August 4, 2015 and granted the following day by Judge 

Zive. A proceeding before Judge Zive ensued on August 11, 2016; the Judge expressed at the 

                                                             1

 Local counsel appeared for JCG, as did an attorney with Dorsey & Whitney, out of Salt 

Lake City, and a third attorney with Fennemore Craig PC, out of Phoenix, on behalf of Wbox 

2014-1 LTD, opposing the two pro se non-attorney complainants in the Mine Act discrimination 

proceedings, Mr. Daniel Lowe and Matthew A. Varady. Mr. Varady’s docket number is listed in 

the caption above. Mr. Lowe’s Mine Act discrimination docket number is WEST 2014-0614. 

The October 25, 2016 Order of Dismissal in Lowe’s case stated that a separate order would be 

issued, mirroring the Lowe Order, but substituting Varady’s name. This is the promised Order. 

Apart from the particulars of the acts of discrimination committed against Lowe and Varady, the 

issues addressed in this Order of Dismissal are identical. 

MATTHEW A. VARADY, 

 Complainant, 

 v. 

VERIS GOLD USA, INC., 

 and 

JERRITT CANYON GOLD, LLC, 

 Respondents. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-0307-DM 

WE-MD 14-03 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 2723
outset that he was greatly concerned that there were proceedings being conducted in another 

administrative forum that were violative of Section 362(a) of the bankruptcy code.2

 Motion Tr. 4. 

 As noted, in its motion, Jerritt Canyon also sought sanctions against the Mine Act 

Complainants. Judge Zive announced near the end of the hearing that he was not going to 

sanction Varady and Lowe, but he then warned, “But you’ve got to stop. . . . No. You’re 

stopping. You’re not going to go anymore. You’re not going to go before Judge Moran or any 

other - - you’re stopping regarding any attempt against successor liability, because it’s not 

allowed pursuant to the order that’s final.” Motion Tr. 45-46. After acknowledging that he would 

not tell any Administrative Law Judge what to do and that it would be inappropriate to do so, the 

Judge distinguished his authority over Varady and Lowe, stating that he does have jurisdiction 

over them, and adding “You will not do anything more. If you do, than I [ i.e. Judge Zive] 

would have to consider monetary sanctions because now I’ve put you on notice.”3

 Tr. 46 

(emphasis added). 

 With the threat of imposing sanctions if Varady and Lowe continued to pursue damages 

for the acts of discrimination by Veris, and potential successor Jerritt Canyon Gold, this Court 

cannot put the pro se, non-attorney Complainants in financial jeopardy. Therefore, it is 

dismissing their claims and hopes, but does not order, that neither Varady nor Lowe appeal this 

                                                             2

 11 U.S.C. §362 is the automatic stay provision of the Bankruptcy Act. As the case had 

been closed, there was no existing automatic stay. Therefore, the case first had to be reopened by 

the bankruptcy court. In relevant part, §362 provides, “(a) Except as provided in subsection (b) 

of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed 

under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, 

applicable to all entities, of — (1) the commencement or continuation, including the issuance or 

employment of process, of a judicial, administrative, or other action or proceeding against the 

debtor that was or could have been commenced before the commencement of the case under this 

title, or to recover a claim against the debtor that arose before the commencement of the case 

under this title.” 11 U.S.C. §362(a). 

3

 Judge Zive’s warning that he would consider imposing monetary sanctions against 

Varady and Lowe are of concern because, apart from the automatic stay provision, the Court 

does not know of the Judge’s authority to effectively stop a proceeding in another tribunal. The 

Judge even seemed to contradict himself, telling Varady and Lowe that if they think, “the orders 

that are entered as a result of today’s hearing are incorrect, you have a remedy. You can ask a 

court to review them. I am not the final word. I can, and often do, make mistakes. But you don’t 

get to go to the [Mine Review] [C]omission. You need to exercise the remedies that are provided 

by the Bankruptcy Code and the appellate rules statutes.” Tr. 46-47. Yet, later he acknowledged 

that the decision in Gruntz, “indicated that parties may request a state court or other forum to 

make a determination if there has been a violation of the stay, but they run the risk of the state 

court getting it wrong. And if the state court gets it wrong or administrative law judge gets it 

wrong, all the proceedings and any orders entered are void.” Tr. 9. Per, n. 12, infra the Judge’s 

reference to “Gruntz” was likely a cite to 202 F.3d 1074 (9th Cir. 2000). Ironically, although the 

dicta in Gruntz certainly supports the Judge, the state court got it right that the automatic stay did 

not void its criminal judgment. Id. at 1088. 

38 FMSHRC Page 2724
Court’s dismissal. The Complainants’ determination of whether to bring an appeal is strictly 

theirs to make. 

This Court’s Order of Dismissal does not necessarily mean that Varady’s and Lowe’s 

Mine Act cases are terminated, because the Commission may, pursuant to 29 C.F.R. §2700.71, 

review this Court’s decision on its own motion.4 In the event that the Commission opts to review 

this dismissal, Varady and Lowe could not be held accountable or subject to the threat of 

monetary sanctions being imposed by Judge Zive. 

The August 11, 2016 Hearing Before Judge Zive 

At the outset of the hearing, Judge Zive noted that Veris sought bankruptcy protection in 

a Canadian court on June 9, 2014, under Chapter 15 of the United States Bankruptcy Code. Tr. 4. 

On May 22, 2015, a Motion for entry of an order to recognize and enforce the Canadian sale 

order was made. Tr. 15. The sale was pursuant to Section 363 of the Code and the Judge 

remarked that provision has all of the due process protections as section 1141 of the Code.5 The 

Judge assumed that the financier, “got some money together, formed this entity, and bought it,” 

adding that none of the creditors, secured and unsecured, got paid. Tr. 16. Thus, the Judge stated 

that if Varady and Lowe had a judgment they would not have been paid.6 Tr. 16. 

On May 29, 2015 the Judge entered a sale order. The Judge stated he was aware that 

there was a Section 364 first position lien to the debtor in possession (“DIP”) lender, (variously 

referred to as “WB,” “Whitebox,” “Wbox 2014-1”), meaning that the DIP had priority over any 

other secured interests. The Judge noted that Whitebox advanced $15 million and created an 

entity known as WBVG, Inc. LLC, which then, on June 5, 2015, changed its name to Jerritt 

Canyon Gold, Inc., and the transaction closed on June 24, 2015. Tr. 19. Eighty percent (80%) of 

                                                             4

 The section provides: “At any time within 30 days after the issuance of a Judge's 

decision, the Commission may, by the affirmative vote of at least two of the Commissioners 

present and voting, direct the case for review on its own motion. Review shall be directed only 

upon the ground that the decision may be contrary to law or Commission policy or that a novel 

question of policy has been presented. The Commission shall state in such direction for review 

the specific issue of law, Commission policy, or novel question of policy to be reviewed. Review 

shall be limited to the issues specified in such direction for review.” 20 C.F.R. 2700.71 

5

 Not everyone agrees with the Judge’s view that the due process protections under 

section 363 are the same as section 1141. See this Court’s Order on Complainant’s motion to 

amend, 38 FMSHRC 565, 578, n. 9 (citing George W. Kuney, “Misinterpreting Bankruptcy 

Code Section 363(f) and Undermining the Chapter 11 Process,” 76 Am. Bankr. L.J. (2002), and 

“Why Successor Liability Claims are not ‘Interests in Property’ under Section 363(f),” 18 Am. 

Bankr. Inst. L. Rev. 697 (2010)). 

6

 The Judge’s remark that Varady and Lowe “would not have been paid” implicitly refers 

to Veris. That is most certainly true, but the Mine Act’s successorship law would inquire whether 

Jerritt Canyon could be held accountable. For that entity, the Judge invoked his ruling that no 

successor would be liable. 

38 FMSHRC Page 2725
the interest in Jerritt Canyon Gold was transferred to Canadian billionaire7

 Eric Sprott. Tr. 19. 

The DIP, Wbox 2014-1, had the remaining 20% interest in the mine. Continuing with his 

recounting of the events, Judge Zive stated that the Canadian sale order occurred on May 28 

[2015] and that he issued his order on June 4th [2015]. Tr. 19. The Judge stated that those orders 

clearly provided there would be no successor liability.8 Tr. 19. The Judge stated that, on June 

18th, a motion to stay was filed by Lowe, Varady and others but that, as judgment had been 

entered for the Respondent on September 9, 2014, this was “well after” the complaints filed by 

Varady and Lowe and therefore their complaints were pre-petition. Tr. 20. 

The Judge found that there was neither a legal nor a factual basis for a stay of the U.S. 

sale order and that Varady and Lowe had not complied with the proper procedure and that they 

had failed to provide any authority for the relief they sought. Tr. 22. On September 2, 2015 the 

case was closed. The Judge stated that in a liquidating Chapter 11 there is no discharge and that 

Varady and Lowe’s claims can’t be satisfied by the “purchaser or anybody subsequent because 

the injunction found in the sale order, which is a final order entered in the bankruptcy case when 

it was open, precludes it.” Tr. 24. 

Addressing this Court’s comment about the appearance of fairness in allowing Varady 

and Lowe to determine, through discovery, the status of Jerritt Canyon as a successor, the Judge 

stated, 

[w]ell, a couple points. Jerritt Canyon was the buyer, the successor. The point is it

was the purchaser. What did it purchase? Their assets. But even if it is, it is of no

legal significance because there's no successor liability.”

Tr. 27. 

7 Marianne Kobak McKown, Going Private: Canadian billionaire buys Jerritt Canyon, 

ELKO DAILY FREE PRESS, June 26, 2015, available at http://elkodaily.com/mining/canadianbillionaire-buys-jerritt-canyon/article_605d9414-8871-5695-878c-4c430c230929.html. 

8 The Judge, who stated that he had “some experience with mining,” added, “I will 

confess now. When I was a lawyer many, many years ago, I actually did work for Dee Gold and 

for Barrick -- no, I didn't do -- but for Newmont,” and expressed an upside to the sale as it 

“allow[ed] this operation to go forward, which protected the jobs of the miners and, of course, 

provided related economic benefit in the communities near the mine site.” Tr. 41, 6. This 

suggested that the gold at Jerritt Canyon might otherwise be left unmined, an unlikely event. 

Further, the multiple discrimination complaints filed against Veris were equally important to 

“protecting the jobs of the miners.” Around the time of those discrimination complaints, Veris 

was also being reviewed to determine if it should be subject to a pattern of violations charge by 

the Secretary of Labor. 

38 FMSHRC Page 2726
The Judge continued that, as for this Court’s suggestion to Varady and Lowe in advance 

of their appearance before the Judge, that they be allowed to have full discovery regarding the 

principal stock holding officers of these various entities, 

there's no point to that. Even if it was appropriate, and it's not, there's no successor 

liability. There's no point to let the proceeding before the Federal Mine Safety and 

Health Review Commission to continue to determine if Jerritt is the successor 

because once again, there's no successor liability.9

Tr. 27- 28. 

The Judge stated that, 

[y]our choice is not to do anything or to ask the bankruptcy court to get relief 

from the stay so that you can proceed with your claim, and then the court would 

look at your pleadings and any opposition and make a decision. Happens all the 

time in bankruptcy cases, where we will allow folks that have been injured in 

automobile accidents or states or counties that have suffered environmental 

damage. 

Tr. 31-32. 

The Judge continued, 

Then I would have made a decision. Unfortunately, it probably wouldn't have 

made much economic difference to you -- and this is what I'm really trying to get 

across – because there is -- and none of the other debtors had any ability to satisfy 

your claim. I'm not saying that you weren't discriminated again. That's not what 

I'm saying at all. What I'm saying is that even if you were able to get some type of 

damages, that you couldn't collect it from the debtors. There is no money. That's 

why Wbox 214 [sic] made a credit bid and Deutsche Bank didn't overbid. That's 

why there were millions and millions and millions of dollars lost in this enterprise 

and lost forever. And there's also a provision under 363 of the Code that allows 

sales of asset to occur if that's in the best interest of both the creditors and the 

debtor. And that was the findings (sic) made by both the Canadian judge and me. 

You're being treated exactly the same as every other unsecured creditor in this 

case. 

Tr. 32-33. 

                                                             9

 With discovery on the issue of successorship barred, the Judge’s determination means 

that the financial relationships, if any, between those who had interests in Veris Gold and Jerritt 

Canyon Gold will never be known and inquiry into the monitor’s acknowledgement that “[w]hile 

the DIP Lender's lack of support for the various EOIs might be perceived as a potential conflict 

of interest, the Monitor remains of the view that the Credit Bid Transaction is the appropriate 

course of action at this late stage of the proceedings,” will similarly not be known. Id. at para. 39; 

2016 WL 4158375 at *7. The Court is unaware of any on the record discussion by the 

bankruptcy court inquiring into the potential conflict of interest alluded to by the Monitor. 

38 FMSHRC Page 2727
The Judge acknowledged that Lowe had a judgment but that, “it’s void - - it may be void 

ab initio as a result of a violation of Section 362 of the Bankruptcy Code.” Tr. 36. The Judge did 

allow that “[t]he United States Courts of Appeal say the bankruptcy courts make that, and you... 

the Gruntz case, which dealt with a state court action, said the state court judgment entered its 

opinion, but if the state court judge gets it wrong, the parties are at their own peril.” Tr. 36. The 

Judge offered that, “you [Varady and Lowe] probably should have got stay relief.” Tr. 37. The 

Judge also remarked, “But every other creditor in this case didn't get paid, and you're in exactly 

the same position. . . . And they didn't do anything wrong either.” Tr. 39. The Judge also 

remarked, 

if you want to proceed in another forum, in another place, and there's no 

exception to the stay, which I believe there isn't in this case -- and I understand 

there may be some disagreement with that, that's fine. But then you need to seek 

relief from this court. And the prudent measure -- and the Ninth Circuit has -- . . . 

has indicated that whenever there is even a doubt whether or not you need to seek 

relief, seek relief from the stay. 

Tr. 40. 

 The Judge continued, 

My point is this. When those cases were filed, everybody was given the same 

notice you were given. And claims can be discharged, and if there's a sale of 

assets, it generally does not allow successor liability, which is allowed pursuant to 

Section 363 of the code. And there are lots of cases dealing with discrimination -- 

TWA was a discrimination case, if I remember correctly. . . . And those were 

flight attendants, I think. . . . And those claims went away. And that's the result. 

People lose their pensions in bankruptcy court. It's no -- one takes no pleasure in 

that, but that is how Congress has written the statute for policy reasons that it 

believes are paramount, and I don't get to wave a magic wand and ignore them, 

and the United States Supreme Court Law v. Siegel case about a year and a half, 

two years ago made that clear. . . . Everybody says the bankruptcy court is a court 

of equity. In a sense we are, but that doesn't mean we just get to say, well, this 

would be fair, and therefore I get to do it. 

Tr. 41-42. 

And still later, the Judge told Varady and Lowe, “if you think I'm wrong and you 

want to go to another court and tell the other court your position -- . . . you can do that. . . 

. And that's what you -- what I'm really trying to tell you is that's what you should have 

done last June.” Tr. 47. 

Following those remarks, the Judge stated, 

I'm granting the motion to reopen. I'm going to grant the motion to enforce my 

sale order. And I'm going to make it clear if it wasn't clear in the order itself. 

There's an injunction against any attempt to proceed regarding successor liability 

because successor liability is specifically prohibited by the terms of the sale order. 

And I'm going to instruct counsel for Jerritt Canyon to provide written findings 

38 FMSHRC Page 2728
and conclusions...What it means is I've reopened the bankruptcy case. . . . That's 

why we have two motions. . . . first, I have to open the case. If I don't reopen the 

case, then I can't enter the order to enforce my earlier sale order. So I'm granting 

the motion to reopen under Section 350, and I find good cause exists. Then I'm 

granting the motion to enforce the order no success liability and injunction 

precluding, preventing, stopping [Varady] and Mr. Lowe from proceeding in any 

other forum regarding successor liability. 

Tr. 58-59. 

He concluded, “I put Mr. Lowe and Mr. Varady on notice that if they violate my order, I 

will enforce it with monetary sanctions.” Tr. 60. 

Following the August 11, 2016 hearing, on September 2, 2016, Judge Zive issued his 

order affirming his remarks at that hearing.10

Accordingly, as discussed above, the Court feels it has no option but to dismiss this 

proceeding. Despite the outcome, the Court believes that further discussion is warranted. 

Discussion

 Judge Zive noted at the outset of the proceeding that he was aware of the discrimination 

complaints brought by Lowe, Varady and others. However, he then proceeded to state that he 

would “make the record now, Administrative Judge Moran had telephoned [him] while the case 

was pending, asking if [he] was aware of these [discrimination] claims.” Motion Tr. 5.11 The 

Judge12 couldn’t remember exactly what he told Judge Moran, nor did he take any notes, but he 

“remembered distinctly” telling this Court that he could not provide any legal advice, that it 

would be inappropriate to do so and that the discrimination complainants should obtain legal 

counsel, but that “[a]pparently that advice was not heeded.” Id. 

 

 

                                                             10 The Judge’s order, at his direction, was created by counsel for Veris/JCG and adopted 

by the Judge who inserted his signature. 

11 To be clear, the references are to Judge Zive’s statements during his August 11, 2016 

motion hearing. 

12 All references to the “Judge” in this Order of Dismissal refer to Judge Zive. References 

to the “Court” refer to the undersigned author of this Order, Judge William Moran. 

38 FMSHRC Page 2729
The problem with Judge Zive’s multiple references to speaking with this Court in the 

transcript of his proceeding on Jerritt Canyon’s motion is that such conversations never

occurred.13

Upon reading the transcript and Judge Zive’s multiple references to alleged conversations 

with this Court, it was necessary, on August 16, 2016, for the Court to send the Judge a letter 

calling attention to his multiple, egregious factual errors in asserting that there had been such 

communication. This Court informed the Judge that there had never been any sort of 

communication between Judge Zive and this Court. The letter advised, 

Judge Zive, you are mistaken. I have never called you, never spoken with you and 

never emailed you. Perhaps you spoke on some prior occasion with another 

administrative law judge, on that I can only speculate, but there has never been 

any conversation or any form of communication between us and, in the name of 

accuracy, I call upon you to correct the record on this score.14 

Judge Zive recounted that he presided at the hearing to recognize the sale order, which 

had been approved by the Canadian court, and that he inquired of counsel for the debtor if they 

were aware of the discrimination claims and that he was “told yes and they were being handled.” 

Id. Noting that those discrimination complaints were brought by individuals and not by “any 

governmental body or regulatory agency,” the Judge stated that the automatic stay provision at 

Section 362(b)(4) appeared inapplicable.15 Id. at 5-6. The Judge then noted that the bankruptcy 

                                                             13 The Judge made several other references during his hearing, claiming to have spoken 

with Judge Moran. Among those errors at transcript page 12, the Judge states: “or Judge Moran - 

- I think that’s how he’s referred to is Administrative Judge Moran - - who I already indicated 

that I talked to, seems like a very nice man - - responded to Mr. Lowe on August 8th.” Tr. 12. 

Later, the Judge remarked in the context of advice, “And that’s why I told Judge Moran he 

should tell you folks to get a lawyer.” Tr. 14. “And that’s why when Judge Moran called me 

some time ago, I - - as I do in every one of these cases, without exception, I strongly urged him 

to advise you, if that’s what he was going to do - -.” Tr. 34. As noted, the Judge never spoke 

with this Court at any time before his August 11, 2016 hearing and the only communication after

that hearing was the Judge calling this Court to apologize for his errors. 

14 To his credit, Judge Zive called this Court, twice, the same day the letter was sent to 

him. He apologized for his errors and advised that the record in his case would reflect his errors 

and include this Court’s letter to him. Judge Zive’s errors were not limited to knowing whom he 

spoke with, as he twice referenced that “the solicitor general of the United States disagrees with 

[Lowe’s] position” about miners being the most precious resource and that the bankruptcy court 

disregards the Mine Act. Tr. 33 (emphasis added). It is the Solicitor of Labor that took issue with 

this Court’s view, not the Solicitor General of the United States. 

15 Though not providing any specific case citations, the Judge stated, “there are a number 

of cases finding that dealing with asbestos cases, dealing with SEC cases, dealing with 

complaints regarding remediation of environmental hazards,” in support of his statement that the 

automatic stay provision was applicable. Motion Tr. 6. 

38 FMSHRC Page 2730
court retains jurisdiction to determine if the automatic stay provision applies.16 Id. at 6. Upon 

review of all the pleadings, the Judge concluded, “there was no money and [he] was satisfied that 

that was the situation and obviously so was the judge in Canada.” Id. at 6-7. 

 Judge Zive then noted that the “sale order that was entered clearly provides that there will 

be no successor liability for the purchaser,” and that a “new entity was formed before the 

transaction closed on June 24th.” Id. at 7. The Judge then added that no request to seek relief to 

allow the discrimination claims to proceed in the administrative forum was made and that, apart 

from whatever the merits may be, it was the process that was not followed. Id. Judge Zive then 

continued that, 

astoundingly, it would appear that the failure to follow that process was being 

advocated by an administrative law judge who, so far as [the Judge] [could] 

determine, has an obligation to be fair and impartial, and yet is clearly providing 

legal advice to at least two of the claimants, notwithstanding the disclaimer that 

he was not doing so. [The Judge didn’t] know how anyone who could be opposed 

or on the other side of the discrimination claims could believe that they were 

going to get a fair hearing when [one] read[s] emails indicating that the 

 

                                                             16 The Judge stated this was not new law, and noted without specific citation, that one 

“can go back to 2002 and look at the Gruntz case.” Motion Tr. at 6. The Judge was apparently 

referring to In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), in which the Ninth Circuit addressed 

“(1) whether a state court modification of the bankruptcy automatic stay binds federal courts; and 

(2) whether the automatic stay enjoins a criminal prosecution for the willful failure to pay child 

support. We hold that federal courts are not bound by state court modifications of the automatic 

stay, but that the automatic stay does not enjoin state criminal prosecutions.” Id. at 1077. Judge 

Zive’s expression of the holding in Gruntz is that “parties may request a state court or other 

forum to make a determination if there has been a violation of the stay, but they run the risk of 

the state court getting it wrong. And if the state court gets it wrong or administrative law judge 

gets it wrong, all the proceedings and any orders entered are void.” Id. at 9 (emphasis added). 

Ultimately the Judge may be correct but this Court is not aware of any decision by a federal 

district or bankruptcy court holding that Mine Act discrimination proceedings, with its unique 

anti-discrimination provisions, are subject to the automatic stay. 

38 FMSHRC Page 2731
administrative law judge is providing advice and - - to those claimants that are 

before him and telling them how to proceed in this [Judge Zive’s] court.17 

Id. at 7-8. 

 It is difficult to know where to begin with Judge Zive’s comments. First, fair hearings on 

the issue of liability had occurred; the decisions upholding the discrimination complaints of Mr. 

Lowe and Mr. Varady had long ago been decided by this Court: October 15, 2015 in the case of 

Mr. Lowe, 2015 WL 6447553, and September 2, 2015, in the case of Mr. Varady, 2015 WL 

5307780. In the Varady matter, defense counsel hired by Veris appeared before this Court. When 

the evidence at that hearing made it plain to all that Varady was the victim of discrimination, 

Veris folded its tent and its counsel withdrew. The same counsel then announced at the outset of 

the Lowe discrimination complaint the week following the Varady hearing, that it was 

withdrawing any defense to the Lowe matter as well. However, the damages phase has never 

occurred for either complaint. Consequently, no amount of damages has been determined for 

either complainant. 

As to the Judge’s assertion that this Court was “clearly providing legal advice to at least 

two of the claimants, notwithstanding the disclaimer that [it] was not doing so,” there are two 

points to be made. The Court made it plain when communicating with the non-attorney pro se 

complainants, Varady and Lowe, about the motion they faced by Veris to reopen the bankruptcy 

case, that its comments were in response to Mr. Lowe’s communication to this Court upon being 

informed of the Veris motion before the bankruptcy court. Far from providing legal advice, the 

Court noted: 

If [the Court] were in [Lowe’s] position, when eventually before the Bankruptcy 

Court, [the Court] would make the following points before that Court, all as 

expressed in the various orders/decisions this Court has issued in your 

discrimination proceeding before the Federal Mine Safety and Health Review 

Commission. You should not view the points which follow as restricting the 

contentions that you may make at the Bankruptcy Court hearing, as you may have 

other arguments to present before that court. I would also provide the Bankruptcy 

                                                             17 The Judge apparently believed that this Court’s guidance to the pro se, non-attorneys 

Varady and Lowe, demonstrated unfairness. “I don't know who would want to go now in front 

of, frankly, Judge Moran once he's provided the assistance to you he's provided to you. I would 

hate to be sitting on that other side of the table, representing somebody else against you folks at 

this point, candidly. That's why I was surprised when I saw those emails.” Tr. 28. The Judge 

apparently forgot that liability had already been decided in both cases, with Varady’s case 

decided after a full and fair hearing with Veris’ counsel conducting extensive discovery and full 

participation in the Varady hearing and then quitting participation on the eve of the Lowe 

hearing. Further, the Court’s emails, all sent to both sides, informed that no determination had 

been made on the successorship question, nor had damages of any amount been determined. Full 

participation would have been provided by the Court on the issues of successorship and 

damages. Further, while Varady and Lowe offered preliminary thoughts about their claimed 

damages, this Court has never ruled on those issues and noted that some of those claims were not 

cognizable under the Mine Act. Those issues remain undecided even today. 

38 FMSHRC Page 2732
Court with copies of all orders/decisions issued by this Court as well as those 

issued by Mine Act Judge David P. Simonton and the related Mine Review 

Commission’s issuances. 

August 8, 2016 email to Mr. Lowe, which email also copied the various Veris/Jarrett Canyon 

attorneys (emphasis added). 

 That the Court referenced its prior orders to the pro se complainants to assist them before 

the daunting prospect of facing multiple lawyers for Veris, Jerritt Canyon Gold, and Wbox 2014-

1 LTD did not amount to providing legal advice. The Court considers it as its duty, in fact views 

it as part of its responsibility that essential justice be provided, to provide a pro se litigant with 

clarification on the significance of its decisions and the nature of the proceedings they face. 

Every person has a fundamental right to access justice through a fair, impartial, and meaningful 

hearing, regardless of whether they are represented by counsel. In particular, judges have an 

ethical duty to be both impartial and fair. Model Code of Judicial Conduct Canon 2 (1997) 

(hereinafter MCJC). Pro se litigants often find it particularly difficult to navigate complex legal 

and procedural issues while attempting to obtain a full hearing on the merits of their dispute. 

Therefore, judges have the power to make reasonable accommodations in the courtroom to 

ensure that pro se litigants are not unfairly hindered in exercising their Constitutional right to a 

fair hearing. The MCJC was revised in 2007 to clarify, “it is not a violation of [the canon of 

impartiality] for a judge to make reasonable accommodations to ensure pro se litigants the 

opportunity to have their matters fairly heard.” Comment 4 to MCJC. 

There is not yet comprehensive guidance on what specific accommodations are 

“reasonable,” or what accommodations are prohibited. Jona Goldschmidt, Judicial Assistance to 

Self-Represented Litigants, 17 Mich. St. J. Int'l L. 601, 608 (2009). When confronted with this 

issue, the Supreme Court of West Virginia held, 

 The fundamental tenet that the rules of procedure should work to do substantial 

justice . . . commands that judges painstakingly strive to insure that no person’s 

cause or defense is defeated solely by reason of their unfamiliarity with 

procedural or evidentiary rules. . . . Cases should be decided on the merits, and to 

that end, justice is served by reasonably accommodating all parties, whether 

represented by counsel or not. This “reasonable accommodation” is purposed 

upon protecting the meaningful exercise of a litigant’s constitutional right of 

access to the courts. 

Blair v. Maynard, 324 S.E.2d 391 (West Virginia 1984). 

 The Court considers it no less than a judicial obligation to provide pro se parties with 

reasonable assistance. Needless to say, “this requires a balancing of the rights of both parties.” 

The Role of the Judge in Pro Se Litigation, 10 No. 6 Divorce Litigation 115 (1998). There is an 

important difference between judicial neutrality and judicial passivity, especially in the pro se 

context when justice occasionally demands judicial engagement, in service of true neutrality, to 

balance out the disadvantages of only one party having the benefit of counsel. Richard Zorza, 

Esq., The Disconnect Between the Requirements of Judicial Neutrality and Those of the 

Appearance of Neutrality When Parties Appear Pro Se: Causes, Solutions, Recommendations, 

and Implications, 17 Geo. J. Legal Ethics 423 (2004). The Court’s task of balancing the judge’s 

38 FMSHRC Page 2733
function as an impartial arbiter against the “necessity that the pro se litigant’s case be fully and 

competently presented” is sometimes a difficult one. ABA Standards, Commission on Standards 

of Judicial Administration, Trial Courts § 2.23 at 45-47 (1976).

18 

 Judge Zive then proceeded to note that the discriminated former employees of Veris had 

been before him earlier when seeking to stay the sale order, and that they were creditors and that 

their claims existed prior to the bankruptcy petition, citing the definition of a creditor as an 

“entity - -and that includes an individual19 - - that has a claim against the debtor that arose at the 

time of or before the order for relief concerning the debtor.” Id. at 8. 

 The Court certainly respects the jurisdictional expressions made by Judge Zive, but it 

does not believe that this Court’s perspective is as unsound as the Judge asserted. That the 

subject of discrimination claims and their interface with bankruptcy protection is a thorny issue 

has been recognized by others: 

Bankruptcy courts, facing a surge in claims stemming from employment 

discrimination, are slowly exploring the impact of this area of law on case 

administration. An inherent conflict exists between the policies underlying 

employment discrimination and bankruptcy laws. On the one hand, employment 

discrimination laws seek to protect employees by making them whole for losses 

suffered, while at the same time deterring management from discriminating again. 

Conversely, the bankruptcy reorganization process stresses rehabilitation of the 

debtor and equality of distribution among the claimants. Although the Bankruptcy 

Code (the “Code”) affords some protection to victims of discrimination, their 

claims are not afforded special treatment under the bankruptcy laws. Low dollar 

distributions on discrimination claims eviscerates the rehabilitative and deterrent 

goals of Title VII of the Civil Rights Act of 1964 and state discrimination statutes. 

The swelling tide of insolvencies involving parties to discrimination lawsuits 

warrants an analysis of both the treatment of employment discrimination claims in 

bankruptcy and the impact of these claims on the bankruptcy process... and the 

ability to exempt employment discrimination claims in bankruptcy. 

Joanne Gelfand, The Treatment of Employment Discrimination Claims in Bankruptcy: 

Priority Status, Stay Relief, Dischargeability and Exemptions, 56 U. Miami L. Rev. 601, 

602 (April 2002). 

 Although the Discrimination Claims in Bankruptcy article refers to the automatic 

stay provision, 11 U.S.C. §362 and acknowledges that it does not apply “to stay the 

                                                             18 See also, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se 

Litigant, 27 J. Nat’l Ass’n Admin. L. Judiciary 447, Fall 2007. 

19 11 U.S.C § 101, provides, at section (10) that the term “creditor” means — (A) entity 

that has a claim against the debtor that arose at the time of or before the order for relief 

concerning the debtor;(B) entity that has a claim against the estate of a kind specified in section 

348(d), 502(f), 502(g), 502(h) or 502(i) of this title; or (C) entity that has a community claim. 

Section (15) provides that the term “entity” includes person, estate, trust, governmental unit, and 

United States trustee. 

38 FMSHRC Page 2734
commencement or continuation of proceedings by governmental units to enforce their 

police or regulatory power or to enforce nonmonetary judgments,” this Court finds it 

difficult to distinguish a Section 105(c)(3) proceeding from a Section 105(c)(2) 

proceeding, simply because the government launches the latter. 

This view arises because Congress did not establish a (c)(3) action as a lesser 

claim and by providing such an action for an individual to pursue it was effectively 

enforcing the governmental regulatory power through the individual. Congress foresaw 

that the agency may get it wrong and therefore created the alternative, but equal, avenue 

for relief against acts of discrimination against miners. In that respect the Section 

105(c)(3) action is arguably unique among discrimination claims and can be viewed as 

indistinguishable by Congress’ inclusion of the provision. 

In addition, Veris proceeded to defend against Mr. Varady in the hearing before 

this Court. It was only when it was beyond cavil that Veris would not prevail that it 

packed up and left the Varady proceeding and quickly thereafter bailed from the Lowe 

discrimination complaint. 

Conclusion 

For the reasons set forth above, the Court hereby DISMISSES the discrimination 

claim brought by Matthew A. Varady. 

SO ORDERED. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

38 FMSHRC Page 2735
Distribution:

Matthew A. Varady, 701 S. 5th Street, #6, Elko, NV 89801, Urandonk406@gmail.com

Danielle B. Lowe, P.O. Box 2609, Elko, NV 89801, danny.lowe@icloud.com

Mark Kaster, Esq., Dorsey & Whitney, LLP, 1500 South 6th Street Minneapolis, MN 55402, 

Kaster.mark@dorsey.com 

Annette Jarvis, Esq., 136 South Main Street, Suite 1000, Salt Lake City, UT 84101, 

Jarvis.annette@dorsey.com 

Cathy L. Reece, Esq., Fennemore Craig, P.C. 2394 East Camelback Road, Suite 600 Phoenix, 

AZ 85016, creece@fclaw.com 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Tevia Jeffries Dentons, Canada LLP, 250 Howe Street, 20th Fl. Vancouver, BC V6C 3R8, 

Canada 

Brad J. Mantel, Esq. Office of the Solicitor, U.S. Department of Labor 201 12th Street, South, 

Suite 401 Arlington, VA 22202-5450, mantel.brad@dol.gov 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th Street, 

South, Suite 401, Arlington, VA 22202-5450 

38 FMSHRC Page 2736