MAY AND JUNE 2007 

COMMISSION DECISIONS AND ORDERS 

05-02-2007 Rex Coal Company KENT 2006-473 Pg. 355 

05-04-2007 Marco Crane & Rigging Co. WEST 2007-363-M Pg.358 

05-04-2007 Eastern Associated Coal Corp. WEVA 2007-378 Pg.361 

05-11-2007 George Reed, Inc. WEST 2007-367-M Pg.364 

05-18-2007 U.S. Silica Company PENN 2007-230-M Pg.367 

05-18-2007 Tri-State Stone & Building Supply, Inc. YORK 2007-53-M Pg.370 

05-21-2007 Aker Kvaerner Industrial Constructors, Inc. WEST 2007-394-M Pg. 373 

05-22-2007 Premier Elkhorn Coal Company KENT 2007-266 Pg.377 

05-31-2007 Rockhouse Energy Mining Company KENT 2007-280 Pg.380 

06-14-2007 Chemical Lime Company of Arizona, Inc. WEST 2007-51-M Pg. 383 

06-22-2007 Don Erickson employed by Raymond Sand 

And Gravel, Inc. CENT 2007-209-M Pg.386 

06-22-2007 State of Alaska Dept. of Transportation 

And Public Facilities WEST 2007-512-M Pg.389 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-04-2007 Powder River Coal, LLC. WEST 2006-433-R Pg.393 

05-22-2007 Sec. Labor o/b/o Thomas F. Wilson v. 

Oak Grove Resources and James Siko SE 2006-176-D Pg.410 

05-30-2007 Sec. Labor o/b/o Lawrence Pendley v. 

Highland Mining Company, Inc. KENT 2007-265-D Pg.424 

06-01-2007 Central Appalachia Mining, LLC. KENT 2006-120 Pg. 430 

06-01-2007 L.C. Curtis & Son, Inc. SE 2007-103-M Pg.447 

06-04-2007 Elk Run Coal Company, Inc. WEV A 2005-82 Pg. 451 

06-05-2007 Spartan Mining Company WEVA 2004-117-RM Pg.465 

06-06-2007 Buzzi Unicem USA CENT 2006-242-RM Pg.490 

06-18-2007 Bell County Coal Corporation KENT 2004-317-R Pg. 506 

06-27-2007 Emerald Coal Resources, LP. and PENN 2007-251-E 

Cumberland Coal Resources PENN 2007-252-E Pg. 542 

06-28-2007 Lone Mountain Processing, Inc. KENT 2006-237 Pg. 557 

06-28-2007 Asphalt Paving Supply, Inc. WEST 2006-577-M Pg. 562 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-21-2007 Sec. Labor o/b/o Frederick Martin v. 

Dickenson-Russell Coal Co. VA 2007-40-D Pg. 566 

i 

MAY AND JUNE 2007 

Review was granted in the following cases during the months of May and June: 

Secretary of Labor, MSHA v. Austin Powder Company, Docket No. CENT 2006-128-M, 

CENT 2006-159-M. {Judge Manning, March 23, 2007) 

Secretary of Labor, MSHA v. Rex Coal Company, Docket No. KENT 2006-473. (Unpublished 

Default order, Chief Judge Lesnick, April 2, 2007) 

Empire Iron Mining Partnership v. Secretary of Labor, MSHA, Docket No. LAKE 2006-60-RM. 

(Judge Barbour, April 13, 2007) 

Secretary of Labor, MSHA v. Chemical Lime Company of Arizona, Inc., Docket No. 

WEST 2007-51-M. (Unpublished Settlement order, Chief Judge Lesnick, May l 0, 2007) 

No cases were filed in which Review was denied during the months of May and June 

11 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

REX COAL COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May2, 2007 

Docket No. KENT 2006-473 

A.C. No. 15-13103-93643 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On December 6, 2006, Chief Administrative 

Law Judge Robert Lesnick issued to Rex Coal Company ("Rex") an Order to Show Cause for 

failure to answer the Secretary of Labor's petition for assessment of penalty. On April 2, 2007, 

Chief Judge Lesnick issued an Order of Default dismissing this civil penalty proceeding for 

failure to respond to the show cause order. 

On April 16, 2007, the Commission received from Rex a motion to set aside the order of 

default. Rex states that it filed an answer on October 23, 2006. Attached to its motion was a 

copy of its Answer. The Secretary has indicated that she does not oppose Rex's request. 

The judge's jurisdiction in this matter terminated when his decision was issued on 

April 2, 2007. 29 C.F .R. § 2700.69(b ). Relief from a judge's decision may be sought by filing a 

petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823( d)(2); 29 C.F.R. 

§ 2700.70(a). We deem Rex's motion to constitute a timely filed petition for review, which we 

grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988). 

Rex allegedly submitted an answer in October 2006 to the Secretary's petition for 

assessment of penalty. However, the Commission apparently did not receive Rex's answer at 

that time. Accordingly, the judge entered a default judgment against Rex. Based on the present 

29 FMSHRC 355 
record, we are unable to determine whether Rex timely submitted its answer, and if so, why it 

apparently was not received. 

Having reviewed Rex's request, in the interest of justice, we remand this matter to the 

Chief Administrative Law Judge, who shall determine whether relief from default is warranted, 

and for further proceedings as appropriate. 

Michael ~ F. DriCh= 

Mic 

29 FMSHRC 356 
Distribution 

H. Kent Hendrickson, Esq. 

Rice Hendrickson & Williams 

P.O. Box 980 

Harlan, KY 40831 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Donna E. Sonner~ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 · 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

29 FMSHRC 3'57 

... <· 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MARCO CRANE & RIGGING 

COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

May4,2007 

Docket No. WEST 2007-363-M 

A.C. No. 02-00135-106324-MWX 

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On April 9, 2007, the Commission received from Marco 

Crane & Rigging Company ("Marco") a motion from its counsel requesting to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section l05(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On December 20, 2006, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued proposed penalty assessment No. 106324 to Marco. Marco did 

not contest the assessment, and on March 22, 2007, MSHA sent Marco a notice that the penalty 

in the assessment was delinquent. Marco asserts that the March 22 notice was the first 

notification that it received of the penalty assessment. On that basis, Marco requests that the 

Commission reopen the proceeding. The Secretary states that she does not oppose Marco's 

request to reopen the penalty assessment. 

29 FMSHRC 358 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to 

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(h) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR., 15 

FMSHRC at 787. 

Having reviewed Marco's request, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Marco's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

29 FMSHRC 359 
Distribution 

Bethany L. Jacobs 

Attorney at Law 

221South35th Avenue 

Phoenix, AZ 85009 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Myra James, Chief 

Office of Civil Penalty Compliance 

U.S. Department of Labor, MSHA 

1100 Wilson Boulevard, 25th Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

29 FMSHRC 360 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMM.ISSl.ON 

SECRETARY OF L.AaOR, 

MINE SAFETY AND HEALTH 

·ADMINISTRATION (MSHA) 

V. 

EASTERN ASSOCIATED COAL 

CORP. 

601 NEW JERSEYAVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May4,2007 

··.:. 

Docket No. WEVA 2007~378 . 

A.C. No. 46-01271-105367 

A.C. No. 46-01271-103170 

BEFORE: Duffy, Chairman; Jordan aridYoung, 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. (2000) ("Mine Act"). On April 10, 2007, the Commission received from Eastern 

Associated Coal Corp. ("Eastern") a motion from its counsel requesting to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

··,,· . 

Under section 105( a) of the .M:lne Act, an operator who wishes to contest a proposed 

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

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

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

On August 16, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued.Order No. 7256017to Eastern. Eastern contested the order, and that 

proceeding was stayed by the assigned judge. On November 14, 2006, MSHA sent Eastern a 

proposed penalty assessment relating to the order. On December 11, 2006, Eastern sent to 

MSHA the assessment form indicating the contest of the proposed assessment for Order No. 

7256017. Eastern then received a letter from MSHA stating that the order had been assessed in 

error and that a new assessment would be issued. On December 12, 2006, MSHA sent a second 

proposed penalty assessment covering Order No. 7256017. Eastern asserts that it failed to file a 

second contest after it received the second assessment because the second assessment was 

29 FMSHRC 361 
~ . . . 

inadvertently misplaced. Eastern further alleges that failure to file the second penalty contest was 

also a result of miscommunication within the operator's organization. The Secretary states that 

she does not oppose Eastern' s request to reopen the penalty assessment. 

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

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. 

Having reviewed Eastern' s request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for. 

Eastern' s failure to timely contest the second penalty proposal and whether relief from the final 

order should be granted. If it is determined that such relief is appropriate, this case shall proceed 

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

Mich 

29 FMSHRC 362 
Distribution, · 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Gateway Center, Suite 1340 

401 Liberty Ave. 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Myra James, Chief 

Office of Civil Penalty Compliance 

U.S. Department of Labor, MSHA 

1100 Wilson Boulevard, 2S111 Floor · 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

29 FMSHRC 363 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

GEORGE REED, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May 11, 2007 

Docket No. WEST 2007-367-M 

A.C. No. 04-03126-107725 

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On April 12, 2007, the Commission received fr~m George 

Reed, Inc. ("Reed") a letter from its counsel requesting to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

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

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

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

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

On August 30, 2006, the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued Citation Nos. 6387811 and 6387812 to Reed. MSHA subsequently sent the 

proposed penalty assessment covering those citations to Reed at its address of record indicated 

on the MSHA Legal Identity Report Form 2000-7. Reed did not contest the assessment in a 

timely manner. Reed asserts that, prior to the issuance of the proposed penalty assessment, it 

requested that MSHA send to its counsel copies of all correspondence with regard to the 

citations. Reed also states that, at the same time, it informed MSHA of its intent to contest the 

citations and related proposed assessments. On those bases, Reed requests that the Commission 

reopen the proceeding. Although the Secretary does not oppose the request to reopen, she notes 

for the record that all proposed penalty assessments are sent by MSHA' s computerized 

29 FMSHRC 364 
assessment system and that all assessments are sent to the operator's address of record on the 

legal identity form. 

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

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

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

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

which, for example, a party could be entitled to relief from a fiiial order ofthe Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure''); JWR, 15 

FMSHRC at 787. 

Having reviewed Reed's request, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Reed's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

~ 

\ . . 

29 FMSHRC 365 
Distribution 

Larry M. Kazanjian, Esq. 

Palmer, Kazanjian, Wohl, Perkins, LLP · 

520 Capitol Mall, Suite 600 

. Sacramento, CA 95814 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 366 · 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION· 

., 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

U.S. SILICA COMP ANY. 

·601 NEW JERSEYAVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May 18,2007 

Docket No. PENN 2007-230-M 

A.C. No. 36-03122-97518 

BEFORE: Duffy, Chairman; Jordan and Young: Commissioners 

ORDER 

BY THE COMMISSION: 

. . 

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

§ 801 et seq. (2000) ("Mine Act"). On April 26, 2007, the Commission received from 

U.S. Silica Company ("U.S. Silica") a letter requesting to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

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

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

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

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

On July 11, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Citation Nos. 6040003 and 6040006 to U.S. Silica. MSHA subsequently sent 

proposed penalty assessments covering those citations to U.S. Silica. The assessment forms 

contain boxes that operators must check to indicate their desire to challenge particular penalties. 

U.S. Silica asserts that it inadvertently left the boxes unchecked on the contest form, but that it 

had written on the form that it was contesting those two proposed penalties. U.S. Silica further 

states that the penalties were inadvertently paid at a later date. On those bases, U.S. Silica 

requests that the Commission reopen the proceeding. The Secretary does not oppose the request 

to reopen the proposed penalty assessments. 

29 FMSHRC 367 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

reopen final section 105( aforders, the Commission has found guidance in Rule 60(b) under 

which, for example, a party could be entitled to relief from a_ final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.I(b) (''the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failun; to timely respond, the case may 

be reopened and appropriate proceedings on the inerits permitted. See. Coal Prep. Se,-vs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed U.S. Silica's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exist~ for U.S. 

Silica's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

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

29 FMSHRC 368 . 
Distribution .· 

Chris Bryan, CMSP 

U.S. Silica Company 

P.O. Box 187 

Berkeley Springs, WV 25411-0187 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 369 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May 18, 2007 

Docket No. YORK 2007-53-M 

A.C. No. 18-00404-108036 

TRI-STATE STONE & BUILDING 

SUPPLY, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On April 23, 2007, the Commission received from Tri-State 

Stone & Building Supply, Inc. ("Tri-State") a motion from its counsel requesting to reopen a 

penalty assessment that had become a final order of the Commission pursuant to section 105(a) 

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On March 23, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Citation No. 6038707 to Tri-State. Tri-State timely filed a notice of contest of 

the citation pursuant to section 105(d) of the Mine Act, 30 U.S.C. § 815(d). On January 16, 

2007, MSHA issued a proposed penalty assessment covering the citation. Tri-State did not 

contest the proposed assessment under section 105(a) and subsequently received a delinquency 

notice from MSHA. Tri-State asserts that, because the citation had already been contested, it 

failed to realize that the penalty contest form also had to be returned to MSHA. Tri-State 

requests that the Commission reopen the proceeding on the basis of inadvertence and mistake. 

29 FMSHRC370 
The Secretary states that she does not oppose Tri-State's request to reopen the penalty assessment 

proceeding. 

We have held that in appropriate circumstances, we pos~ess jurisdiction to reopen 

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commis~ion on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. 

Having reviewed Tri-State's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for . . . 

Tri-State's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

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

29 FMSHRC 371 
Distribution 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D · 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Comrriission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 372 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

. WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

AKER KV AERNER INDUSTRIAL 

CONSTRUCTORS, INC. 

May21,2007 

Docket No. WEST 2007-394-M 

A.C. No. 02-03131-103872 lPL 

Docket No. WEST2007-395-M 

A.C. No. 02-00024-106188 lPL 

BEFORE: Duffy, Chainmm; Jordan and Young, 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. (2000) ("Mine Act"). 1 On April 19, 2007, the Commission received from Aker 

K vaemer Industrial Constructors, Inc. ("Aker K vaemer") a letter 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). 

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

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

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

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

On November 21, 2006, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued proposed penalty assessment No. 103872 to Aker Kvaemer. 

On December 19, 2006, MSHA issued proposed penalty assessment No. 106188 to Aker 

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

consolidate docket numbers WEST 2007-394-M and WEST 2007-395-M, both captioned Aker 

Kvaerner Industrial Constructors, Inc. and both involving similar procedural issues. 29 C.F.R. 

§ 2700.12. 

29 FMSHRC 373 
Kvaemer. With.respect to-proposed penalty assessment No; 106188; Aker Kvaeriier asserts that 

it first received notice of the proposed penalty assessment when it received a notice of 

delinquency in March 2007. It alleges that the proposed assessment was mailed to a former, 

incorrect address. With respect to proposed penalty assessment No. 103872, Aker Kvaemer 

asserts that it first learned of the proposed penalty assessment from a subsequent discussion with 

MSHA informing it that the penalty was also delinquent, apparently because the proposed 

assessment had also been sent to the same incorrect address. Aker K vaemer further states that 

MSHA indicated that it would re-mail the notice of the proposed assessment and "re-set" the 30 

days in which to request a formal hearing. Aker Kvaemer alleges that it returned the contest of 

the proposed penalty upon receipt but that it subsequently learned from MSHA that it needed to 

contact the Commission to reopen the proceeding. On those bases, Aker K vaemer requests that 

the Commission reopen the proceedings. The Secretary states that she does not oppose Aker 

K vaemer' s request to reopen. 

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

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

29 FMSHRC374 
Having reviewed Aker K vaemer' s request, in the interests of justice, we remand this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Aker K vaemer' s failure to timely contest the penalty proposals and whetb.errelief from the 

final orders should be granted. If it is determined that such relief is appropriate,_this case shall 

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

29 FMSHRC 375 · 
Distribution 

DanielJ. Warter, Safety Manager 

Aker Kvaemer Industrial Constructors, Inc. 

2550 N. Dragoon St., Suite 150 

Tucson, AZ 85745 · 

W. Christian Schumanp, Esq. 

Office of the Solid tor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 376 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH . 

ADMINISTRATION (MS.HA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

May22,2007 

Docket No. KENT 2007-266 

A.C. No. 15-18370-107844 

PREMIER ELKHORN COAL COMPANY 

BEFORE: Duffy, Chrurman; Jordan and Young, 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. (2000) ("Mine Act"). ·0nApril 27, 2007, the Commission received from 

Premier Elkhorn Coal Company ("Prem1er Elkhorn") a motion requesting to reopen a penalty 

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

Mine Act, 30 U.S.C.§ 815(a). 

. Under section lOS(a}oftht:; Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretaiy ofLabor no later than 30 days after receiving the proposed 

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

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

On January 11, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty assessment No. 107844 to Premier Elkhorn. Premier 

Elkhorn asserts that it inadvertently sent.the contest of the proposed penalties, along with 

payment of uncontested penalties, to MSHA' s Pittsburgh office rather than to the correct MSHA 

office located in Arlington, Virginia. Premier Elkhorn requests that the Commission reopen the 

proceeding based on its inadvertence and mistake. Although the Secretary does not oppose the 

request to reopen the proposed penalty assessment, she notes that in recent months Premier 

Elkhorn has previously filed two motions to reopen on the very same grounds of sending the 

contest to the wrong MSHA office and suggests that Premie:i; Elkhorn take steps to ensure that 

future contests are sent to MSHA' s Civil Penalty Compliance Office in Arlington, Virginia. 

29 FMSHRC 377 
We have held that in appropriate circumstances, we possessjuriscliction to reopen 

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700. l(b) (''the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Premier Elkhorn' s request, in the interests of justice, we remand this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Premier Elkhorn' s failure to timely contest the penalty proposal and whether relief from the 

final order should be granted. Ifit is determined that such reliefis·appropriate, this case shall 

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

29 FMSHRC 378 
Distribution 

John M. Williams, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

W. Christian Schumann~ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 379 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCKHOUSE ENERGY MINING 

COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

May31, 2007 

Docket No. KENT 2007-280 

A.C. No. 15-17651-95341 02 

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On May 7, 2007, the Commission received from Rockhouse 

Energy Mining Company ("Rockhouse") a motion to reopen certain penalties proposed within a 

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

the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On August 10, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty assessment No. 000095341 to Rockhouse, covering 43 

citations and orders. According to Rockhouse, it marked the assessment form to contest 27 of 

the penalties proposed. However, the assessment form that Rockhouse forwarded by telecopier 

to its counsel omitted a page of the assessment. Consequently, Rockhouse's counsel only 

contested 16 of the penalties, in a proceeding presently pending in Docket No. KENT 2006-500. 

Rockhouse now requests that the 11 other proposed penalties on the missing page that it intended 

to contest be reopened. The Secretary states that she does not oppose Rockhouse's request to 

reopen. 

29 FMSHRC 380 
We have held that in appropriate circumstances, we possess jurisdiction to reopen .· 

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis ofinadvertence or mistake. See 29 C.F.R § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure''); JWR; 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Sents., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Rockhouse' s request, in the interests of justice, we remand this matter 

to the Chief Administrative Law Judge for a determination of whether good cause exists for 

Rockhouse' s failure to timely contest the penalty proposals and whether relief from th~ final 

order should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part2700. 

29 FMSHRC 381 
Distribution · 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP · 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001::..2021 

29 FMSHRC 382 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA) 

v. 

.· 601 NEW JERSEYAVENUE, NW 

. SUITE9500 

WASHINGTON, DC 20001 

June 14, 2007 

Docket No. WEST 2007-51-M 

CHEMICAL LIME COMP ANY OF 

ARIZONA, INC. 

DIRECTION FOR REVIEW AND ORDER 

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

§ 801 et seq. (2000) ("Mine Act" or "Act"). On May 10, 2007, Chief Administrative Law Judge 

Robert J. Lesnick issued a Decision Approving Penalty and Order of Dismissal in this civil 

penalty proceeding, In his decision,._ the judge stated that the Commission had been informed by 

the Secretary of Labor that the penalty in this case had been paid. He apprnved the $625 penalty 

assessment and dismissed the case. 

On June 6, 2007, th(:Commissfon received from Chemical Lime Company of Arizona 

("Chemical Lime") a pe~ition for discretionary review. In the petition, Chemical Lime asks that 

the judge's decision be set aside and the case remanded for further proceedings before the judge. 

Thejudge' s jurisdiction over this case terminated when he issued his decision on May 10, 

2007. 29 C.F.R. § 2700.69{b). Relief from a judge's decision maybe 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). Chemical Lime's petition has been timely filed and is hereby granted. 

On September 14, 2006, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued proposed penalty assessment No. 000098576 to Chemical 

Lime. In its petition, Chemical Lime alleges that it contested the underlying citation and 

answered the Secretary's petition for assessment of penalty. It explains further that in October 

2006, it issued a check to MSHA as payment for a different proposed penalty assessment, No. 

000091132. According to Chemical Lime, it subsequently learned that $625 of this payment was 

applied to the proposed penalty for penalty assessment No. 000098576, which is the subject of 

this penalty proceeding. It states that MSHA has now updated its records to reflect that Chemical 

29 FMSHRC 383 
Lime has not paid the proposed penalty for penalty assessment No. 0000098576/and attaches a 

current MSHA Data Retrieval System notice indicating that the penalty has not been paid. See 

Exhibit D to Petition for Discretionary Review. The Secretary states that the factual 

representations in the petition for discretipnary review are accurate, and that she does not oppose 

the operator's request that the Commission set aside the judge's order of dismissal and remand 

the case to the judge for further proceedings. 

Based on the present record, it appears that the judge may have prematurely dismissed the 

proceeding. In the interest of justice, we vacate the judge's May 10 decisfon and remand this 

matter to the judge for further proceedings as appropriate. See RBS, Inc., 26 FMSHRC 751, 7 52 

(Sept. 2004). 

29 FMSHRC384 
Distribution. 

Charles H. Morgan, Esq. 

Jereby D. Tucker, Esq. 

Alstopn & Bird, LLP 

1201 West Peachtree Street 

Atlanta, GA 30309-7777 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Isabella M. DelSanto, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

90 Seventh Street, Suite 3-100 

San Francisco 94103-1516 

Chief Administrative Law Judge Robert J. Lesni.ck 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 385 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

June 22, 2007 

Docket No. CENT 2007-209-M 

A.C. No, 14-00458-110978 A 

DON ERICKSON, employed by 

RAYMOND SAND & GRAVEL, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) ("Mine Act"). On May 31, 2007, the Commission received from Don 

Erickson, the President of Raymond Sand & Gravel, Inc. ("RS&G"), a motion made by counsel 

to reopen a penalty assessment against Erickson under section 11 O( c) of the Mine Act, 30 U.S.C. 

§ 820(c), that had become a final order of the Commission pursuant to section 105(a) of the Mine 

Act, 30 U.S.C. § 815(a). 

Under the Commission's Procedural Rules, an individual charged under section l lO(c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 29 C.F.R. § 2700.27. 

On February 12, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty assessment No. 00110978A to Erickson, pursuant to section 

110( c) of the Mine Act, for three orders and one citation for which RS&G had already received, 

and contested, proposed penalties in a separate proposed assessment. Shortly thereafter, the 

Secretary filed and served RS&G with a petition for assessment of penalty for the penalties it was 

contesting. Erickson, acting pro se at that time, mistakenly assumed that the petition also 

29 FMSHRC 386 
included the penalties MSHA was seeking to collect from him as an individual, and consequently 

did not separately contest those penalties. The Secretary states that she does not oppose 

Erickson's request to reopen the penalty assessment. 

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

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis ofinadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR., 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the .. 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). .. , , 

Havin:g reviewed Erickson's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Erickson's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

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

\:.~ Michael~ chai11Ilail 

29 FMSHRC 387 
Distribution 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P .C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U$. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 388 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMIS$10N 

· 601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

June 22, 2007 

STATE OF ALASKA DEPARTMENT OF 

TRANSPORTATION AND PUBLIC 

FACILITIES 

Docket No. WEST 2007-512-M 

A.C. No. 50-01803-74414 

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

ORDER 

BY THE COMMISSION: 

This matter aris~s under the Fc::deral Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act''). ·On May 29, 2007, the Commission received from counsel for 

the Alaska Department of Transportation and Public Facilities ("ADOT &PF") a letter requesting 

reconsideration of the response by the Department of Labor's Mine Safety and Health 

Administration ("MSHA") to ADOT &PF' s request that it be granted a hearing on a penalty 

assessment that had been issued to ADOT &PF. We construe the letter as a motion to reopen the 

assessment, which ADOT&PF believes had become a final order of the Commission pursuant to 

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

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

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

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

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

On December 7, 2005, MSHA issued proposed penalty assessment No. 000074414 to 

ADOT &PF. On becemoer 26, 2005, ADOT &PF filed a timely notice of contest. According to 

ADOT &PF, it heard nothing further on the matter until it realized that the proposed penalty was 

included among several penalties that a collection agency was seeking to collect from 

ADOT &PF on behalf of MSHA. The Secretary states that she does not oppose reopening, and 

concedes that ADOT &PF filed a timely notice of contest. 

29 FMSHRC 389 
Having reviewed ADOT&PF's motion and the Secretary's response, we conclude that the 

proposed assessment at issue has not become a ftnal order of the Commission because 

ADOT &PF timely contested it. We deny ADOT &PF' s motion as moot and remand this matter 

to the Chief Administrative Law Judge for further proceedings as appropriate pursuant to the 

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

28 FMSHRC 440, 441 (July 2006). 

29 FMSHRC 390 
Distribution 

Joan M. Wilson, Asst. Attorney General 

State of Alaska 

1031West4th Avenue, Suite 200 

Anchorage, AK 99501-5903 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29 FMSHRC 391 
29 FMSHRC 392 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

POWDER RIVER COAL, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE· SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POWDER RIVER COAL, LLC, 

Respondent 

May4, 2007 

. : 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEST 2006A33-R 

Citation No. 7609689; 05/17/2006 

Docket No. WEST 2006-434-R 

Order No. 7609690; 05/17/2006 

Docket No. WEST 2006-'435-R 

Order No. 7610075; 05/17/2006 

North Antelope Rochelle Mine·. 

Mine ID 48-01353 

CIVIL PENALTY PROCEEDING 

Docket No, WEST 2007-026 

A.e No. ·48;.01353-97471 

North Antelope Rochelle Mine · 

Appearances: Karen L. Johnston, Esq., and Timothy R. Olson, Esq., Jackson Kelly, 

PLLC, Denver Colorado; for Powder River Coal, LLC; 

Before: 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department · 

of Labor, Denver, Colorado, for the Secretary of Labor. 

Judge Manning 

These cases are before me on three notices of contest filed by Powder River Coal, LLC, . 

("Powder River") and one petition for assessment of civil penalty filed by the Secretary of Labor, 

aciing through the Mine Safety and Health Administration ("MSHA")pursuant to sections 105 

and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the 

"Mine Ad"). Powder River contested a Citation and two orders of withdrawal issued by the · 

Secretary under section 104(d)(l) of the Mine Act. An evidentiary hearing was held iii Gillette, 

29 FMSHRC 393 
Wyoming. The parties introduced testimony and documentary evidence and filed post-hearing 

briefs. 

I. THE CITATION AND ORDERS AT ISSUE 

Powder River owns and operates a large surface coal mine known as the North Antelope 

Rochelle Mine in Campbell County, Wyoming. The mine has over 1,000 employees and also 

employs many contractors. The mine operates twenty-four hours a day, seven days a week and 

produced about 88.5 million tons of coal in 2006. 

Powder River operates an electric mining shovel designated as Shovel No. 104, which is 

a P&H 4100 shovel. Electric power is supplied to this shovel by a 7200.,.volt trailing cable that is 

attached to the rear of the shovel's car body. This type of shovel is the largest manufactured 

shovel in the mining industry. It is no exaggeration to say that it is about the size of a small ship. 

(Ex. G-1, p. 11). On April 19, 2006, the shovel was undergoing preventive maintenance ("PM"). 

Eight maintenance technicians, including both mechanics and electricians, were assigned to the 

shovel. During a PM, technicians periodically leave the shovel and depart in their vehicles to 

obtain parts or to work on other projects. The technicians assigned to this PM came and went as 

needed. (Tr. 117). While the PM was underway, there were a number of maintenance and 

service vehicles parked behind and on the right side of the shovel. There was no production 

operator assigned to the shovel during the shift and no production crew was present. The 

maintenance crew was also performing a center pin adjustment, which required that the bucket be 

in a raised position and that power to the shovel not be locked out. 1 On that same day, a safety 

audit team, made up of five members of mine management, conducted a safety audit of the 

shovel. The alleged actions of the members of this audit team are the subject of the citation and 

orders at issue. 

On May 3, 2006, the MSHA Gillette field office received an anonymous complaint that 

someone at the mine had walked under a suspended load. MSHA Inspectors Scott Markve and 

Todd Jaqua investigated the complaint. After touring the mine and talking to people they 

decided that they had insufficient information to substantiate the complaint. 

·'· ~· 

On May 9, 2006, a second complaint was filed that provided more details about the 

alleged incident. The complaint stated that someone walked under a suspended load during a 

center pin adjustment on ShovelNo. 104 on April 19, 2006. The inspectors resumed their 

investigation upon receipt of this complaint. At the conclusion of their investigation, they issued 

a citation and two orders. 

'1 The shovel pivots or swings around the center pin. During the center pin adjustment, 

which is __ also referred to as the center nut adjustment and the tightening of the-center pin nut, 

mechanics enter the house on the shovel, remove the guards from around the center pin, and tighten 

the center pin down. The bucket must be in the raised position to balance the weight of the shovel 

around the center pin. 

29 FMSHRC 394 
Inspector Markve issued Citation No. 7609689,urider section 104(d)(l) of the Mine Act 

alleging a violation of section 77.409( a) as follows, in part: 

The [No. 104] sho~el, located in the Boltz pit, was ,operated in the 

presence of persons exposed to a hazard from its ~peration, Whlle 

the bucket was rzjsed to perform adjustments, a. member of the 

Mine Audit team (made up of five members of mine management) 

was observed by three miners within the swing radius and under 

the raised bucket of the shovel. In addition, four members of the 

team had also boardeq the shovel without notifying the operator of 

the shovel. 

Inspector Markve determined that an injury was highly likely and that aμy injurY res~lting, from 

the violation is likely to be fatal. ~e determined that the violation was of a significant and 

substantial nature ("S&S") and that Powder. River's negligence demonstrated reckless disregard. 

He also determined that the vi~lation was a result of Powder River's UI1warrantable failure to. 

comply with the safety standard. The safety standard provides, in part, that "[ s ]hovels .... shall 

not be operated in the presence of any person exposed to a hazard fro1Il its operation . '. ... " The 

Secretary proposes a penalty of $9, 700.00 for this citation. 

. . . . . . . . . 

Inspector Markve also issued Order No. 76096,90 under.section 104(d)(l) of the Mine . 

Act. This order alleged a violation of section 48.31 (a) because the five people on the audit tc;,am 

had not been provided with hazard training priorto performing the audit on the No. 104 shovel 

on April 19, 2006. At the hearing the. Secretary agreed to modify the order to a section 104(a) 

non-S&S citation with moderate negligence. (Stip. 8). The number of persons affected by the. 

violation was modified to one and Powder River agreed to pay a penalty of $463 .00 for the 

violation. . . · · 

Inspector Jaqua issued Order No. 7610075 under.section 104(d)(l) of the Mine Act 

alleging a violation of section 77 .1607 ( f) as follows, in part: 

The equipment operator was present on the [No.104] shovel and 

wa5 not notified before members of a mine management safety 

audit team boarded. . . . The audit team, ·consisting of fi~e 

members in management, approached from the rear of the shovel 

unannounced. All members were out of the operator's field of 

vision while maintenance was being performed on the center pin. 

Adjustments to the cent((r pin required the operator to be in control . 

. of all shovel operations with the exception of the swing motion .. 

The bucket was raised off the ground as part of the manufacturer's 

standard operating procedures to balance the weight of the shovel 

off the center pin. During the adjustment at least four members of 

the audit team boarded the shovel. 

29 FMSHRC 395 
Inspector Jaqua determined that an injury was reasonably likely and that any injury resulting from 

the violation was likely to be fatal. He determined that the violation was S&S and that Powder 

River's negligence was high. He also determined that the violation was a result of Powder 

River's unwarrantable failure to ·comply with the safety standard. The safety standard provides 

that "[ w ]hen an equipment operator is present, men shall notify him before getting on or off 

equipment." The Secretary proposes a penalty of $6,000.00 for this order. 

II. SUMMARY OF THE TESTIMONY 

The citation and orders were issued because of the manner in which the audit team 

conducted the safety inspection. MSHA contends that, because the safety audit team approached 

the shovel without alerting the equipment operator, the members of the team exposed themselves 

to several hazards associated with the operation of the machine. Therefore, MSHA asserts, there 

were clear violations of the above-cited standards. In contrast, Powder River argues that, 

because the coal shovel at issue was down for preventive maintenarice at the time of the audit 

team's arrival, there was no hazard created by the shovel and therefore no violations of the safety 

standards. All of the evidence relates to the events of April 19, 2006; at the shovel. Neither 

MSHA inspector was present at the time of the alleged violations. 

During his investigation, Inspector Markve interviewed employees and managers at the 

mine site and examined the coal shovel. As a result of the investigation, MSHA concluded that 

the shovel was operated in the presence of persons exposed to a hazard from its operation. 

Inspector Markve testified that three miners told him that, while the bucket of the shovel was 

raised to perform adjustments, a member of the safety audit team walked within the swing radius 

of the boom of the shovel and under the raised bucket of the shovel. (Tr. 49, 50-51, 59, 68..:71) .. 

Inspector Markve was also advised by the maintenance crew making the center pin adjustment on 

the shovel that the audit team approached unseen from the rear during this adjustment without· 

notice. (Tr. 59-61 ). Markve was told by the person operating the shovel that he first realized that 

the audit team was present when a team member opened the door to his cab. (Tr. 54-55). In 

addition, Inspector Markve said that, according to all of his interviews, the power to the shovel · 

was on at the time, meaning that the power cord to the shovel was energized and the machine 

was capable of movement. (Tr. 52-53). Inspector Markve testified that, when members of the 

audit team asked why the power was not locked out during the procedure, the mechanics told the 

audit team that power to the machine was necessary when adjusting the center pin. (Tr. 55, 66). 

Inspector Markve testified that he issued Citation No. 7609689 to Powder River Coal 

Company because members of the audit team were exposed to hazards from the shovel's 

operation. Markve testified that the shovel operator Steve Davis, electrician Dustin Freed, and 

maintenance worker Layton Villalobos observed Mark Bunney of the audit team walk underneath 

the sticks, boom, and bucket of the shovel.2 (Tr. 75-77; Ex. G-1). These men said they were able 

2 The two sticks, which are attached to the back of the bucket, connect the bucket with the 

boom of the shovel and are used to move the bucket in and out. (Tr. 352-53; Ex. G-1(6)). 

29 FMSHRC 396 
to identifyBunney because of the clothing he was wearing. (Tr. 76). He testified that he· 

designated the violation as S&S because the manner in which the mine audit team arrived , · 

unannounced and dispersed throughout the area around the shovel put the team in danger of 

serious injury. (Tr. 87-88). He also testified that people have been killed by exposure to m.oving 

equipment at other mines. (Tr. 88, 95-96, 111; Ex. G-9). In addition, Markve testified that 

MSHA has issued several warnings to mine operators on how to avoid pedestrian injilries 

resulting from equipment operation. (Tr. 90-94; Exs. G.,. 7 through G-9). Finally, Inspector . 

Markve mentioned that the North Antelope Rochelle safety rules prohibit miners from being . 

within the swing radius of a shovel or under a suspended load and that managers from .the mine 

had attended an MSHA meeting at which similar dragline and shovel hazards were discussed (Tr. 

101-02, 104-05, 109; Exs. G-6, G-11)~ He admitted that, although the trailing cable to the shovel 

was energized,. the shovel would need to be turned on before it could move .. He also testified that 

when the shovel's ladder is down and the shovel is turned off, the shovel cannot swing, the sticks 

that operate the boom for the bucket cannot move, and the bucket cannot be raised or lowered. 

(Tr. 122-23): 

Steven Davis, the maintenance technician. who was. assigned to ·be in the cab of the shovel 

on April 19, testified thatacenterpin adjustment requires at least three mechanics. Typically, 

the mechanics clear the area of any unnecessary personnel, remove the guards that are around the .. 

center pin, and attempt to tighten the center pin nut. If the nut cannot be turned; •then the shovel 

is turned on and the bucket is raised to balance the weight of the shovel around the pin. Often 

the shovel operator will bounce the bucket up or down so that the shovel's weight shifts allowing 

the pin to be tightened. (Tr. 162-67). The mechanic who operates the shovel during the center 

pin adjustmentmust stay in the cab at all times and he depends on the mechanics in the house to 

tell him what he needs to do to assist them . 

. Davis testified that he arrived at the shovel in a boom truck on April 19 to do some 

welding.3 When the center pin adjustment was started, the electricians left the shovel because 

power to the shovel needs to be locked out when performing electrical work. ·Davis was assigned 

to sit in the cab during the center pin adjustment and the mechanics in the house shouted up the 

stairs to the cab whenever they needed him to take some action. When the mechanics asked him 

to raise the bucket,· he honked the horn, pushed the start· button on his console, released the 

brakes for the boom, and hoisted the bucket into the air. (Tr.177-78). He put the bucket in the 

fully extended position so as· to balance the weight of the shovel on the center pin. When a 

mechanic told him that they could not tighten the center pin, Davis shook the shovel by moving 

the bucket.up and down in an attempt to reposition the machine. (Tr. 181-82). He had to bounce 

the shovel several times. 

While waiting for further instructions from the mechanics, two people from the audit 

team opened the door to his cab and told him they were there for a safety audit. Davis testified · 

3 The boom truck was also referred to as the "service truck,"-''knuckle truck;'' and 'fwelding 

truck" at the hearing. 

29FMSHRC397. 
that nobody from the audit team radioed him to announce that they were boarding the shovel. 

Davis stated that he believes that this action was dangerous because, if he had been asked to 

bounce the shovel again or if he had released the brakes for the sticks or bucket, they could have 

been injured by the sudden movement. (Tr. 186). 

Mr. Davis also testified that while he was waiting for further instructions, an electrician 

walked up to him and pointed out a guy walking under the bucket. On direct exi:unination, Davis 

testified that he saw a man walk from the left side of the shovel, under the right comer of the 

bucket, to the boom truck parked to the right of the bucket. (Tr .. 193-96, 215-16; Ex. G-15). He 

stated thattbis was dangerous because loose material on the bucket could fall. Davis stated that, 

based on the clothes the man was wearing as well as his frame, he believes that the man he 

observed under the bucket was Mark Bunney. He wrote out a statement to that effect. (Ex. G-16 

(2)). The power was turned off when he saw Mr. Bunney walk under the bucket. (Tr. 224). 

Dustin Freed, an electrician, testified that he was at the shovel on April 19 to perform a 

minor adjustment on the switch for the shovel's ladder. He testified that while he was waiting 

for the mechanics to complete the center pin adjustment, he saw a man under the raised bucket of 

the shovel. (Tr. 247~ 250) .. More specifically, he stated that he looked down from the cab of the 

shovel to see a man checking the chock blocks on the boom truck. ·Freed testified that the man 

backed up to a point where he was "prettyclose to being under [the bucket]." (Tr. 249). At this · 

point, he asked Mr. Davis whether it appeared that he was under the bucket. He believed that the 

man-in question was a member of the audit team. (Tr. 250). 

Layton Villalobos, a mechanic, testified that while he was in the house on the shovel with 

another mechanic adjusting the center pin, three or four members of the audit team arrived and 

asked why the power to the shovel was not locked out. Villalobos replied that they needed the 

power so that the bucket could be raised during the center pin adjustment. He stated that when 

he left the house and walked out on the catwalk, he saw a man looking at the back of the boom 

truck. He believed that the man was ''under the sticks, in between where the bucket would be 

and the tracks" of the shovel. (Tr. 265-67). When Villalobos was at the bottom of the shovel's 

ladder he saw the man under the sticks walking parallel to the boom truck. (Tr. 263-64, 268-69). 

The man was walking a few feet from the boom truck, toward the front of that truck. (Tr. 270-

72). The bucket did not move when he saw the man near the boom truck. If the bucket had been 

lowered at that time, Villalobos believed that it could have hit the man and the boom truck. 

Inspector Todd Jaqua testified that he issued Order No. 7610075 because the audit team 

did not notify the operator of the shovel that they were going to be on and near the shovel. (Tr. 

278-79). He also concluded that three of the five audit team members boarded the shovel while 

the bucket was extended in the air.. The failure to notify the equipment operator that people 

would be approaching the shovel leaves those approaching without proper notice of the hazards 

that might be present in or around such equipment. Jn this instance, the members of the audit 

team were exposed to hazards because they were unsure about whether the shovel was powered 

and whether it was capable of movement. {Tr. 281). The common practice is to get visual 

29 FMSHRC 398 
confirmation of one, s presence from an operator prior to approaching; If such confirmation is 

not possible, then it is standard practice to get audio confirmation by radio or other means. He 

believes that this is required with respect to active:equipment that is in production and equipment 

that is under maintenance if an equipment operatQr is present. (Tr. 283). He testified that he 

designated the violation as S&S because five-people en.tered the area without knqwledge of the 

specific hazards that might be present. Inspector Jaqua admitted that with the ladder down, the 

shovel could not swing. He .was not sure if it could propel with the. ladder down. (Tr. 298~99). 

Roger Rasmussen testified for Powder River. Mr. Rasmussen was the Field Maintenance 

and Electrical Coordinator at the mine. He testified that a PM is typically performed on coal 

shovels every two weeks.. During a PM, maintenance .workers park their vehicles close to the 

shovel and they enter and exit the shovel throughoutthe day:via the ladder. (Tr. 334-335). He 

testified that it has never been the mine' s practice to notify the potential operator of a shovel that 

is down for a PM prior to boarding because "it's not practical ... [and the shovel's] not in 

operation." (Tr. 336). Shovel No. 104 was scheduled for an all day PM on April 19 and several 

maintenance.procedures were scheduled to be performed.· 

James Single, the Pmduction Coordinator, testified that a safety audit team consists of a 

group of supervisors who go through a work area looking for safety infractions. (Tr .. 396). On 

April 19, he assembled an audit team and decided to visit the 104 shovel because it was downJor 

a PM. He drove the team to the Boltz Pit in a van. He stopped the van about 400 feet behind the 

shovel for observation and then followed a vacuum truck up to the back of the shovel and parked. 

Several trucks were parked behind and to the right of the shovel, llicluding a: boom truck directly 

to the right of the shovel's raised bucket, a pickup truck with an attached trailer that was parked 

at the base of the shovel's ladder, several pickup trucks behind the shovel, and the vacuum truck. 

(Tr. 401-03; Ex. R-1). Single testified that with.theladderdown, the shovel could not propel or 

swing. (Tr. 403-04, 406). Consequently, he believes that it was safe for vehicles to park around 

the shovel and for miners to enter and exit the shovel. 

When the audit team got out of the van, two people walked up the ladder and entered the . 

shovel house to see ifthere were any accumulations of grease. The shovel is quite loud when it 

is running so he knew that it was not running at that time. (Tr. 416-17). He talked to mechanics., 

who were doing some work on the ceiling in the shovel house and he talked ·to the mechanics 

who were tightening the center pin. He followed another audit team member, Kathy King, into 

the cab of the shovel. Single discussed whether the power should be locked out during a center 

pin adjustment and Davis explained that it cannot be locked out because he needs to be able to 

move the bucket.. Later, a mechanic came up to the cab to tell Davis that the bucket should be · 

lowered to the ground as they had finished the center pin adjustment. Davis then turned on the 

shovel, honked the horn,-lowered the bucket, and turned the shovel off again. (Tr. 413-415). 

The bucket did not strike qr come close to the boom truck, which was 10 to 20 feet to the right of 

the bucket, when the bucket was lowered. 

29 FMSHRC 399 
Mark Bunney, the Warehouse .Manager, testified that he was on the safety audit team on 

April 19. When the team arrived at the Boltz Pit, he got out of the van and looked at the shovel. 

He stated that he knew that the shovel was ofDbecause he could not hear the Jans and the ladder 

was down. (Tr. 436-37). He saw Dustin Freed andtold him that they were there for a safety 

audit. Mr. Freed did not warn the audit team that it was unsafe to board the shovel. Bunney 

testified that he walked around the vehicles parked on the right side of the shovel looking for 

safety problems. He noticed that the chock on the rear driver's side of the boom truck was out of 

place. (Tr. 444-45). He re-aligned the chock and inspected the cab of the vehicle. He stated that 

he then w3.Iked toward the ladder of the shovel and that at no time did he walk along the left side 

of the shovel. (Tr. 449). After he boarded the shovel, he talked to the mechanics. Soon 

thereafter, the mechanics advised the team that the shovel was about to be started and they should 

leave the house. Bunney testified that he went down the ladder and proceeded to the rear of the 

shovel. The audit team left the shovel area shortly thereafter. 

Mr. Bunney testified that, fater that day,, he heard that Mr. Davis accused him of walking 

under the bucket. Bunney stated that he immediately denied doing so to Rick Case; who was 

foreman for Davis's crew. (Tr. 449-50). Other members of the audit team told Mr. Case that 

Bunney had never walked along the left side of the shovel. The driver of the vacuum truck, who 

worked for an independent contractor, also told Case that Bunny had walked along the right side 

of the shovel when he inspected the boom truck. Bunney also testified that he never walked 

under the sticks or under the bucket when he was inspecting the boom truck and he ·did not see 

anyone else doing so. Later that same day, Bunney talked to Davis about his accusation. Bunney 

testified that Davis apologized to him and said that he did not see Bunney walk under the bucket. 

(Tr. 453). 

III. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

As stated above, power is supplied to the shovel via a trailing cable that enters at the back 

of.the shovel. Inside 'the cab on this shovel there is a red start button. That button must be 

pushed to energize the main-transformer on the shovel. Once the transformer is energized, it 

supplies power to the 600-volt bus bar which, in tum, energizes various motors and fans on the 

shovel. The fans create a significant amount of noise, between 90 and 100 decibels in the house. 

(Tr. 346). Anyone in a parked vehicle near the shovel can hear the fans. 

The shovel is designed to propel forward and backward on tracks. ·It can also swing, 

which rotates everything on the shovel that is above the tracks. The shovel operator can raise and 

lower the bucket and he can crowd the bucket, which is moving the bucket toward and away 

from the house on the shovel: The shovel's sticks are used during this crowding function. The 

controllers for alLof these movements are located in the cab of the shovel which is about 20 feet 

above the ground. The shovel is equipped with propel, swing, hoist, and crowd brakes and the 

release buttons for these brakes are also in the cab. 

29 FMSHRC 400 
The above~describ,ed brakes on the shovel cannot be released until the. shovel is turned on 

using the red start button. In addition, the shovel will not propel or swing when the ladder is in 

the down position. Only the bucket hoisting and crowding functipns can operate with the ladder 

down. The operator of the shovel cannot raise or lower the ladder from the cab. To raise the 

ladder, someone must go to the top of the ladder to switch on the motor that lifts up the ladder. 

In order (or the shovel operator to move the bucket (hoist or crowd), he must tum on the 

shovel, sound a horn, anP, depress either the hoist release or crowd release button, or both, in the 

cab. When the shovel is turned off with the bucket in a raised position, the hoist brake is 

automatically applied. The shovel operator has a good view of the ground in front of the shovel, 

especially to the right. Visibility is not as good to the front-left side of the shovel.. 

On April 19~ 2006, there was maintenance activity on the shovel at the time the audit 

team arrived. There was an operator in the cab, the bucket was in a raised position, and the 

ladder was down. The shovel operator, Mr. Da:v:is, was trained to operate the shovel for limited 

oper~tions, known as "start-up, move, and shut down" procedures("SMS"). Thus,.Davis is 

known as an SMS operator because he never operates the shovel during production. About six 

vehicles were parked to the-rear and to the right of the shovel. No vehicles were parked on the 

shovel's left side. 

When the safety audit team arrived at the. shovel, its. members knew that the shovel was 

undergoing a PM and was not in production. Mr. Single, the aud,itteam leader, saw that the 

ladder wa~ down and saw atleast one maintenanc.e technician. come down the ladder. The only 

time that the shovel operator turned on the. shovel during the safety audit was to lower the bucket 

after the center pin was tightened. The team members were warned that the bucket would be 

lowered. 

A. Citation No. 7609689; §77.409(a) 

I find that the Secretary did not establish a violation of section 77.409(a). The citation 

charges that the shovel was operated in the presence ofthe audit team members and that they 

were exposed to a hazard from its operation. Specifically, it states that "[w]hile the.bucket was 

in a raised position to perform adjustments, a member of a mine audit team (made up o.f five 

members of mine management) was observed by three miners within the swing radius and under 

the raised bu~ket of the shovel." The citation further alleges that "four members of the team had . . 

also boarded the shovelwithoutnotifying the operator of the shovel." The safety standard states: 

Shovels, draglines, and tractors shall not be operated in the 

presence of any person exposed to a hazard from its operation and 

all such equipment shall be provided with an adequate warning 

device which shall be sounded by the operator prior to starting 

operation. 

29 FMSHRC 401 
Powder River first argues that, because the shovel was in a PM mode rather than in 

production, the safety standard does not apply. I reject this argument because the safety standard 

is not so limited. It also argues that, if the standard does apply, it was not provided with adequate 

notice that the standard was applicable to shovels that are down for a PM. I also reject this 

argument. The phrase "should not be operated" cannot be interpreted to only mean "should not 

be operated for the purposes of production." Such an interpretation is illogical since someone 

can be exposed to a hazard from a shovel's operationeven ifit is not digging coal. I find that the 

standard applies to situations where someone is exposed to a hazard from the operation of the 

shovel while it is undergoing maintenance. 

The Secretary maintains that at the time the audit team arrived at the shovel, the shovel 

was being operated by the maintenance crew. This crew was "managing the [shovel], because 

they were directing, governing, and controlling it." (S. Br. 9). At the time of the audit, the 

mechanics were conducting a center pin maintenance operation, the shovel was not locked out, 

the main power source was on, the bucket was in the raised position, and the operator was in the 

cab in control of the shovel's hoist and crowd functions. As a consequence, she argt.iesthat the 

shovel was operating at the time of the safety audit. 

I reject these arguments. The Secretary bases her argument on a dictionary definition of 

"operate" as ''to manage or use (a machine, device, etc.)." (S. Br. 8) (citation omitted). From 

there, she argues that ''manage" means "to handle, direct, govern or control." (S. Br. 9) (citation 

omitted). There is no dispute that thete was· a PM occurring at the time of the audit so that 

someone was in "control" of the shovel. I find the Secretary's· logic stretches the term "operated'' 

beyond recognition. When the shovel is turned on it is clearly being "operated,'' but the fact that · 

people are on the shovel performing maintenance does not mean that the shovel is being 

operated. The evidence makes clear that the shovel was not turned on while the audit team was 

at the shovel except near the end of their inspection when the bucket was lowered and the audit 

team was warned of this fact prior to its movement. I find that the shovel was not being operated 

while the audit team was present until it was turned on by the shovel operator. 

The Secretary also contends that the audit team was subjected to hazards during the center 

pin adjustment. Her primary argument in this regard is that the team failed to notify the shovel 

operator that they had boarded the shovel and the team members did not know what work was 

being performed on the shovel. They also lacked experience with the center pin adjustment 

process. The shovel operator could have started the shovel and moved the bucket without 

knowing that audit team members were on the shovel or in the ·vicinity of the shovel. 

Consequently, she argues that the team members were exposed to various hazards on the shovel, 

including a stumbling or tripping hazard if the bucket was moved, and unspecified electrical 

hazards. 

I find that the Secretary's argument with respect to the lack of notice given to the shovel 

operator is relevant to the order of withdrawal, discussed below, but that it has limited relevance 

to this citation. I agree that there was a potential that Mr. Davis would tum the shovel on and 

29 FMSHRC 402 
move the bucket when .the audit team first arrived. If that had occurred, there was a potential that 

a team member walking up·the ladder cou~d stumble, for example,. The other hazards relied upon 

by the Secretary have nothing to do with the operation of ~e shovel or are too vague to 

considered. Inspector Markve admitted that he had no basis to believe that there were any 

electrical hazards on the shovel. (Tr. 132-33). The audit te.am was given notice before the 

shovel was started to lower the shovel. Although.the shovel was operated to bounce the bucket 

at least twice during the center pin adjustment, that occurred before the audit team arrived at the 

shovel.4 The Secretary did not establish that the shovel was operated in the presence of any 

person exposed to a hazard from its operation. 

The Secretary introduced evidence that one member of the audit team walked under the · 

bucket during his examination of vehicles on the ground. Nevertheless, I credit the testimop.y of 

Mr. Bunney that he did not walk under the bucket or sticks of the shovel. Inspector Markye 

based his determination that someone walked under the bucket on the statements of miners. 

These statements and the accompanyingtestimony are inconsistent. For example;. Mr. Villalobos 

testified that if the bucket had been lowered at the time he saw someone under !he sticks, it could 

have potentially hit the man and the boom truck. (Tr. 271; Ex. G-16 p. 4. It is clear from the 

evidence that the boom truck was parked some distance away from the bucket and wh.enDavis 

subsequently lowered the bucket it did not hit or come close to the boom truck. fudeed it was 

Mr. Davis who parked the boom truck at th(ltlocation when he first arrived at the shovel at the 

beginning of the shift. A person's visual perspective can be off when looking at the bucket and 

sticks when standing on the catwalk or cab of the shovel. 

I find that the Secretary did not establish that any member of the audit team walked under 

the sticks or bucket of the shovel. First, because there were no vehicles on the left side of the 

shovel, there would have been no reason for anyone to have walked on the left side of the shovel 

or to have approached the boom truck from the left side and walked under the boom. .I credit 

Bunney' s testimony as to his activities at the. shovel that day. He looked over the pickup and .· 

trailer parked near the ladder and then walked up the right side of the shovel to adjust the chock 

on the boom truck. When he was inspecting the boom truck, it is likely that he backed up a little 

on the truck's left side, but that would not have placed him under the sticks or the bucket as the 

truck was parked 10 to 20 feet from the bucket. Davis testified that he thought he saw Bunney 

walk from left to right between the shovel and bucket. Mr. Freed testified that he thought he saw 

someone getting pretty close to being under the bucket near the boom truck .. I note that Inspector 

Markve did not issue a citation for anyone walking under raised equipment under section 

77. l 607(k) or any other standard and he testified that he was not able to definitively determine 

during hisinvestigation whether anyone had actually walked under the bucket or the sticks. (Tr. 

142). The Secretary did not establish that anyone walked under the bucket or sticks and; 

moreover, the shovel was not operating at the time. 

4 Mr. Davis testified that if you are in the house on the shovel when the bucket is bounced, 

it will not knock you over but it feels like a sonic boom. (Tr. 213). 

29 FMSHRC 403 
Inspector Markve alsorelieci on the·fact that members of the audit team were within the 

swing radius of the shovel during their audit. As stated above~ the shovel could not swing with 

the ladder down andthe shovel operator could not lift the ladder from his cab. The fact that the 

shovel operator had parked the hoist truck within the swing radius near the bucket demonstrates 

that he was not going to swing the shovel during the PM. 

B. Order No. 7610075; §77.1607({) 

I find that the Secretary established a violation of section 77.1607(f). The citation 

charges that the audit team members approached the shovel unannounced from the rear of the 

shovel so that the shovel operator was not aware of their presence. The bucket was off the 

ground, the shovel was not locked out, and the shovel had been operated during the PM. The 

safety standard states: 

When an equipment operator is present, men must notify him 

before getting on or off equipment. · 

I find that the safety standard required, under the particular circumstances of this case, 

that the audit team notify the shovel operator that they were getting ready to board the shovel. I 

agree that this requirement may not be applicable every time that there is a PM, but in this case 

the bucket was in a raised position which should have alerted the audit team that an equipment 

operator was present. During many if not most PMs there is no SMS operator on the shovel and 

the power is locked out. In such an instance, the safety standard would not apply. 

As with the previous citation, Powder River argues that the safety standard did not apply 

because the shovel was not in a ''production mode, and [was] not turned on or capable of being 

moved at the time the equipment[was] boarded." (P.R. Br. 27). "The plain language of the cited 

standard limits its application to those situations where loading and haulage equipment is being 

operated, not where a shovel is removed from production work and is down for preventive 

maintenance." Id. It relies on the fact that the safety standard is in Subpart Q of Part 77, which 

is entitled "Loading and Haulage" and that section 77 .1607 is entitled "Loading and haulage 

equipment; operation." Powder River argues that it is illogical to interpret the safety standard to 

require notification when the equipment is shut off and is down for maintenance. I disagree. The 

standard clearly states that notification is required whenever an equipment operator is present. 

Although the gravity of the hazard may be less when the equipment is under repair, a hazard is 

still present. Although it did not occur in this case, an individual might board a piece of 

equipment under repair without the knowledge of the equipment operatorjust as the operator is 

about to move the equipment. The operator may have cleared every person knowri to be present 

out of harm's way but,-because he did not know that the intruder was present, his movement of 

the equipment could injure that person. The Secretary's interpretation of this standard is logical 

and it does not achieve an "absurd result," as alleged by Powder River. Id, 

29 FMSHRC 404 
:Powder River also argues that it was not the practice at the mine to notify SMS operators 

when getting on or off a shovel during a PM. This practice has. e~isted for o;ver 20 years. (P.R. 

Br. 28). It states that there have never been any injuries to anyone, who did not notify the 

operator, when getting on equipment down for a PM. Mr~ Single knew _that the shovel was down 

for a PM, that it was noUurned on, and that the ladder was down. He knew that, with the ladder 

down, the operator could not swing or propel the. shoveL Based on these facts, Powder River 

argues that it was reasonable for Mr. ~jngle and the_other team members to assume that boarding 

the shovel did not pm;e anY hazards. I find that _Powder River's arguments ignore the fact th(l.t the 

equipment operatorknew that experienced maintenance technicians were present, but he did not 

know that there were five other individuals present who were not part of the crew. That 

knowledge is important information for the equipment operator sin9e he is in control of the 

shovel. It is important to note that several of the team members lacked experience with the 

operation and maintenance of large mining equipment and one member had not received hazard 

training. As a consequence, it was especially important for the shovel operator to know that they 

were present. 

Powder River also notes that at the time the audit team members boarded the shovel, 

another team member spoke to Mr. Freed, an electrician, and told him that they were going to be 

inspecting the shovel. Powder River argut::s that because Freed did not alert the team to any 

hazards on the shovel or warn them not to hoard the shovel, it was reasonable for the team to 

proceed. I find that this argument puts the cart before the horse. It was not _Freed' s obligation 

under the safety standard to warn theaμdit team of hazards; rather, it was the obligation of the 

team under the standard to take steps to ensure that the shovel_ operator knew that they were 

present. Compliance with this safety standard is not difficult. For example, a team meml>er 

could have told Freed or another miner to go.- tell Davis of their presence befc;>re they began their 

inspection. In the alternative, when the team drove into the pit in their van, M.r. Single.may have._ 

been able to park the van in a spot where the shovel operator would have seen them. He could 

have also notified Mr, Davis on the radio. It is important to remember that the shovel is a huge 

piece of equipment and the operator has limited visibility. It is crucial that he know what 

individuals are in and around the shoveL 

I find that the Secretary established that the violation was S&S. A violation is classified 

as S&S "if based upon the facts surrounding the violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC l, _ 

3-4(January1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation 

of the criteria is made assuming "continued normal mining operations." US.: Steel Mining Co., 

6 FMSHRC 1573, 1574 {July 1984). The question of whether a particular violation is S&S must 

be based on the particular facts surrounding the violation. Texasgulf, Int,, I 0 FMSHRC 498 

(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard; 

(2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not -

29 FMSHRC 405 
required to show that it is more probable than not that ail injury will result from the violation. 

U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). . 

The Secretary established all four elements of the Mathies test. The key question is 

whether she established that there was a reasonable likelihood that the hazard contributed to by 

the violation would result in ;an injury. ·At the time the audit team arrived, the shovel was· turned 

off, vehicles were parked within the swing radius of the shovel, and the bucket of the shovel was 

raised in the air. Two .audit team members entered the house on the shovel and other team 

members walked near the shovel. There was a reasonable likelihood that the hazard contributed 

to by the violation would result in an injury, because the operator of the shovel had no idea that 

the audit team was present. Several of the team members held positions with Powder River that 

did not involve them in the actual mining process. For example, Mr. Bunneywas the warehouse 

manager and Lee Hays was the purchasing manager for Powder River. None of the audit team 

members had received any task training on the shovel and Mr. Hays had not received any hazard 

training. It has been the mine's practice to allow managers or other individuals who were not 

particularly knowledgeable of the hazards associated with shovels to board and walk near a 

shovel when an SMS operator is present without first notifying the operator. There were 

numerous obvious and latent hazards present. Mr. Davis could have started the shovel at any 

time before he was notified of the auditteam's presence. The mechanics had removed guards in 

the house and were tightening down the center pin. I note that the area under the bucket was not 

barricaded to prevent anyone from walking under it. Powder River trains its miners to barricade 

the area under the bucket and sticks whenever the bucket is in a raised position. (Tr. 378; Ex. G5). Although I determined that the Secretary failed to establish that anyone was actually under 

the raised bucket, there was nothing on the ground to warn team members not to walk through 

the area. An inexperienced, untrained person on the audit team could have done sci without the 

shovel operator's knowledge and exposed himself to a hazard. 

I find that any injury would be of a reasonably serious nature. Although bouncing the 

bucket will not generally knock someone down, if a team member were walking up the ladder 

when the bucket was bounced, he could stumble or fall. Material stuck on the bottom of the 

bucket could have fallen onto a team member walking under the bucket. Davis testified that, 

because he did not know that the audit team was present, he could have released the brake for the 

boom and dropped the bucket on an audit team member. (Tr. 186). If this had occurred, the 

injurywould have been serious or fatal. Consequently, I find that this violation was S&S and 

that the gravity was serious. 

Inspector Jaqua determined that Powder River's negligence was high and that the 

violation was a result ofits unwarrantable failure to comply with the safety standard. 

Unwarrantable failure is defined as aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," 

or the "serious lack of reasonable care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC at 193-94. A number of factors are relevant in determining whether a violation is the · 

29 FMSHRC 406 
result of an operator's unwarrantable failure, such as the extensiveness of the violation, the 

length of time that the. violative_ condition has existed, the operator's efforts tq eliminate the 

violative condition, whether.an operator has .been placed on notice that greater efforts are 

necessary for compliance., the operator's knowledge of the existence of the violation, and 

whether the violation is obvious or poses a high degree of danger r. Mullins & Sons ,Coal Co., 16 

FMSHRC.192, 195 (Feb. 1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); 

Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 

The Secretary argues that the violation was obvious. Inspector Jaqua testified that 

whenever he has inspected a mine, the company escort has always notified the equipment 

operator before boarding a piece of equipment, even if it was not in production. He noted that 

the audit team's failure to notify the shovel.operator violated Powder River's safety rules. (Tr. 

287-291; Exs. G-5 and G-6). Powder River states that two of the company safety rules cited by 

the Secretary are rules that prohibit entry into the swing radius of a shovel. or other equipment 

without prior communication and clearance. It argues that the record makes clear that these 

safety rules only apply when the equipment is in a "production mode." (P.R. Br. 42; Tr. 377, 

423-26, 430-31; Ex. G-6). Another rule (Rule 11) provides that "[p ]rior to boarding any piece of 

equipment, permission must be granted by the operator." (Ex. G-6 p. 66). Mr. Single testified 

that this rule has never been applied when equipment is undergoing maintenance. {Tr. 423-26, 

430-31). 

I find that the Secretary did not establish thatthe violation was the result of Powder 

River's unwarrantable failure to comply with the safety standard. The practice at the mine has 

been to make contact with the equipment operat(.)rwhen the equipment is operating. Inspector 

Jaqua agreed that this had been the mine's practice. {Tr. 315-16). Jaqua admitted that MSHA 

never advised Powder River that this practice violated section 77.1607(f) and that Powder River 

had ne_ver been cited for a violation. {Tr. 316-17). At his deposition, the inspector stated many 

mines probably do not provide any notification when boarding equipment that is under . 

maintenance. (Tr. 317). 

As stated above, during many if not most PMs at this mine there is no operator on a 

shovel. In this particular instance, because the bucket was raised, Mr. Single should have known 

that an SMS operator might be present. Nevertheless, I find the team's failure to notify the SMS 

operator that its members would be boarding the shovel did not amount to aggravated conduct 

constituting _more than ordinary negligence. Although I find that the audit team's conduct was 

negligent, it did not amount to "reckless disregard," "intenti~:mal misconduct," "indifference," or 

the "serious lack of reasonable care." The record.re:veals that Powder River genuinely believed 

that it was complying with the safety standard. . Consequently, it did not know that greater efforts 

were necessary to comply with the safetY standard. I find that Powder River's negligence was 

moderate. This order is modified to a section 104(a) citation. 

IV. APPROPRIATE CIVIL PENAL TIES 

29 FMSHRC 407 
Section 1 lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The mine had a history of about 47 paid violations in the two years 

prior to May 17, 2006. (MSHA' s Data Retrieval System). Powder River is a large operator and 

the mine is large. All ofthe violations were abated in good faith. The penalties assessed in this 

decision will not have an adverse effect on Powder River's ability to continue in business .. My 

gravity and negligence findings are set forth above. Based on the penalty criteria, I find that the 

penalties set forth below are appropriate. 

V. ORDER 

Based on the criteria in section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation/Order No. 

7609689 

7609690 

7610075 

30 C.F.R. § 

77.409(a) 

48.31(a) 

77.1607(f) 

TOTAL PENALTY 

Penalty 

Vacated 

$463.00 

2,500.00 

$2,963.00 

Accordingly, the Citation No. 7609689 is VACATED, and Order Nos. 7609690 and 

7610075 are AFFIRMED as MODIFIED above, and Powder River Coal, LLC, is ORDERED 

TO PAY the Secretary of Labor the sum of$2,963.00 within 30 days of the date of this decision: 

Upon payment of the penalty, these proceedings are DISMISSED. 

Richard W. Manning 

Administrative Law Judge 

29 FMSHRC 408 
Distribution: 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CQ 80202 (Certified Mail) 

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 8_0202-

1958 (Certified Mail) - - - -

RWM 

29 FMSHRC409_ 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

on behalf of THOMAS F. WILSON, 

Complainant 

UNITED MINE WORKERS OF 

AMERICA, 

Intervenor 

v. 

OAK GROVE RESOURCES, LLC, and 

JAMES E. SIKO, 

Respondent 

May22, 2007 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. SE 2006-176-D 

BIRM CD 2006-03 

Mine ID 01-00329 

Concord Prep Plant/Oak Grove Mine 

Appearances: Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Complainant; 

Patrick K. Nakamura, Esq., Nakamura, Quinn & Walls, LLP, Birmingham, 

Alabama, for Intervenor; 

Thomas A. Smock, Esq., and Michael D. Glass, Esq., (on brief), Ogletree, 

Deakins, Nash, Smoak & Stewart, P.C., Pittsburgh, Pennsylvania, for 

Respondents. 

Before: Judge Hodgdon 

This case is before me on a Discrimination Complaint brought by the Secretary of Labor, 

acting through her Mine Safety and Health Administration (MSHA), on behalf of Thomas F. 

Wilson, against Oak Grove Resources, LLC, and James E. Siko, pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815{c). A trial was held 

in Birmingham, Alabama. For the reasons set forth below, I find that neither Respondent 

discriminated against the Complainant. 

29 FMSHRC 410 
Backeround 

. . . . -. 

. Oak Grove Resources operates the Oak Grove Mine, an underground coal mine, and the 

Concord Preparation Plant near Adger, Alabama .. ·The company's corporate headquarters are 

located at the South Point complex, outside of Canonsburg, Pennsylvania. James E. SikQ is 

Vice President of Operations and the top management official at the Oak Grove Mine and 

preparation plant. 

Oak Grove's miners are represented by the United Mine Workers of America (UMWA). 

Thomas F. Wilson is ~mployed by the UMW A as an International Health and Safety 

Representative and is a representative of miners at the Oak Grove Mine and Concord Preparation 

Plant. His office is in Hueytown, Alabama. He do~s not work for Oak Grove Resources. 

On Saturday, January .·14, 2006, Wilson conducted a UMW A safety.inspection of tlie 

Conc9rd Preparation Plant, under the terms of the collective bargaining agreement. He was 

accompanied on the inspection by Thomas Henson, an employee of Oak Grove and the president 

of the local UMW A union, and Gary McGough, an Oak Grove Safety Coordinator. Wilson 

provided a copy of his inspection report to Oak Grove management on January 15. On Tuesday, 

January 17, he filed a copy of the report with the MSHA District Office as a hazard complaint 

under section 103(g) of the Act,30 U.S~C. § 813(g). 1 . . 

In response to Wilson's complaint, MSHAinspector Jarvis Westery conducted an ... · . 

inspection of the preparatio~ plant that same day. At 10:15 a.m. he issued Order No. 7687445 

alleging a violation with regard to. the coal thermal dryer facility. This resulted in closing down 

the facility until tlJ.e order was termin_ated at 3: 15 p.ni., afte~ Oak Grove had abated the cited 

condition. 

Siko was underground in the Oak Grove mine on the morning of January 1? ~hen he was 

informed of the order shutting down the thermaldryer facility and that a 103(g) complaint h~d 

been filed. He left the mine and went to the preparation plant sometime after 1 :30 p.m. to. 

oversee the abatement of the order and to discuss it with the inspector. 

Sometime on January 18, a second 103(g) complaint, concerning the underground mine, 

was called into the local MSHA office by an anonymous miner. As a result, MSHA Inspector 

Russell Weekly conducted an inspection of the mjne on the 18th and issued four citation.s to the 

company. 

1 Section 103(g) provides that: .. "Whenever a representative of the miners .... ,has 

reasonable grounds. to believe that a violation of this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such ... representative shall have· a right to obtain an 

immediate inspection by giving notice to the Secretary .... " 

29 FMSHRC 411 
Wilson filed his discrimination complaint with MSHA on February 2, 2006, concerning 

statements alleged to have been made by Siko. One was alleged to have been made to Ralph 

Erwin, an hourly employee, on the night of January 17~ The other was purported to have been 

made to John Cupps, an hourly employee and chairman of the UMW A Mine Committee at the 

preparation plant, over the telephone on the afternoon of January 18. 

Fin dines of Fact and Conclusions of Law 

Section lOS(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that a miner, or 

representative of miners, cannot be discharged, discriminated against or interfered with in the 

exercise of his statutory rights because: (1) he "ha8 filed or made a complaint under or related to 

this Act, including a complaint ... of an alleged danger or safety or health violation;" (2) he "is 

the subject of medical evaluations and potential transfer under a standard published pursuant to 

section 101 ;" (3) he "has instituted or caused to be instituted any proceeding tinder or related to 

this Act or has testified oris about to testify in any such proceeding;" or ( 4) he has exercised "on 

behalf of hilllself or others ... any statutory right afforded by this Act" · 

In order to· establish a prima facie case of discrimination under sectiOn 105( c )( 1 ), a 

complaining miner, or representative of miners, must show: (1) That he engaged in protected 

activity; and (2) That the adverse action he complains of was motivated in any part by that 

activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr: 1998); Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981 );'Secretary on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.1980), rev'don other grounds sub 

nom Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 198f). 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. Pasula, 2 FMSHRC at 2799-

800. If the operator cannot rebut the prima facie case in this manrier, it, nevertheless, may 

defend affirmatively by proving that it was also motivated by the miner's Un.protected activity 

and would have taken the adverse action for the unprotected activity alone. Id. at 2800; · 

Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC; 813 F.2d 

639, 642 (4th Cir. 1987). 

In this case, there is no dispute that Wilson engaged in protected activity. It differs from 

most discrimination cases, however, in that the issue is whether there was any adverse action 

taken by the Respondents, not whether the adverse action was motivated by the protected 

activity. The Complainant asserts that Siko made statements to Erwin and Cupps that would 

have a chilling effect on miners' willingness to make safety complaints. Siko denies making 

such statements. 

For the most serious of the statements, the one supposed to have been made to Cupps, the 

evidence is in direct conflict and cannot be reconciled. Cupps and Wilson contend that Siko 

29 FMSHRC 412 
made threatening statements over the telephone. Siko denied making the statement and denied 

talking on the telephone to Cupps at all during the time when the statement was supposed to have 

been made. 

Concerning the statement to Erwin, Erwin and Siko were essentially in agreement about 

what was said. On the other hand, the rest of the witnesses who testified about their . 

understand:UJ.g of Siko' s statement described a different statement than the one related by Erwin 

and Siko. 

. ' . . 

Obviously, either the Complainant and his witnesses were not telling thetruth, or.the 

company witnesses were not telling the truth. However, for most of the witnesses, it was not 

obvious from the manner and demeanor of the witness that he was being untruthful. Nor was it 

obvious from the accounts themselves which was faise. Further, this is not a case where one side 

has an evidentmotive to lie and the other does not. In the final analysis then, inconsistencies and 

the fact thl;l.t the burden is on the Complainant to prove the case have provided the reasons for the 

decision in. t:his case. A discussion ofthose reasons is set forth below. 

The Complaint 

Wilson's complaint, filed on February 2, 2007, stated as follows: 

Qn January 18, 2006 (specifically) and other dates (in 

general), myself, other miners and miners representatives have 

heard Oak Grove Resources, Inc. Vice President James E. Siko 

make threats of discharge against all employees that engage in 

protected activities under the 1977 Mine Health and SafetyAct 

and/or supported Tom Wilson exercising his protected activities 

under said Mine Act. This verbal threat specifically spelled out . 

that it was being addressed against all UMW A employees at both . 

the Oak Grove Mine and the Concord Mine. 

(Jt. Ex. 6.) When the Discrimination Complaint wasJileci with 14e Commission, the allegation· 

was that: 

Respondents Oak Grove and James E. Siko discriminated 

against and interfered with the statutory rights of Thomas Wilson 

as a "representative of miners" and those miners.employed at the 

. Concord Mine~ Preparation Plant:, and Oak Grove Mine, when 

·: Respondent James .E. Siko. made statements to miners' 

representatives and miners in which he.threatened to. retaliate, 

against any miners who made safetycomplaints to Oak Grove; who 

filed complaints with MSHA under Section.103(g) of the Mine 

Act; or who assisted or supported miners and miners' 

29 FMSHRC 413 
(Comp. at 3.) 

representatives who made safety complaints or filed complaints 

under Section 103(g) of the Mine Act. 

As can be seen,· it is only by construing Wilson's "other dates (in general)" remark fo 

include the alleged statement to Erwin and the.fact that the Secretary assigned no dates to the 

allegations in the Complaint, that the statement to Erwin is included in this proceeding at all. 

Nevertheless, evidence concerning it was produced at the hearing and the parties have discussed 

it in their briefs; so it is being considered part of the complaint. 

· The Statement to Erwin 

On the afternoon of January 17, Siko made arrangements for miners from the mine to be. 

sent to the preparation plant to assist in abating the violations found by Inspector Westery and the 

deficiencies set out in Wilson's inspection report. He left the mine in the evening and returned to 

the preparation plant around 10:30 or 10:45 p.m. He encountered Erwin, a stationary equipment 

operator, in the lunch room of the preparation plant building. According to Erwin, Siko "shook 

my hand and asked me how I was doing." (Tr. 97.) 

Erwin testified that Siko then said, ''that these 103's were going to kill the Company, and 

that whoever was calling in the 103(g)'s might as well have gone ahead and committed suicide 

because they were killing their jobs." (Tr. 98.) Erwin stated that he replied that he did not know 

anything about ''the 103's." (Tr. 99.) 

Siko's recollection of the conversation was similar. He testified that·he said: 

(Tr. 305.) 

Well, I'm not doing very well. The violations arid the (g)'s are 

tearing us apart. The guy who's filing these, that's not the way to 

get it done, that's more like suicide. We've got to get better, we've 

got to - jobs are at stake if we don't improve here, and the 

Government will shut us do'Wn, and they've told us this, you know, 

that unless we improve, that'll happen. 

Erwin related that after talking to Siko, he completed his rounds and then went back up to 

the control room, located a short way down the hall from the lunch room, to warn Tommy 

Henson that Siko was "mad" and that "he needed to be careful what he said around Mr. Siko 

while he was upset." (Tr; 99-101.) Erwin said that he relayed to Henson exactly what Siko had 

said to him. (Tr. 116.) However, Henson claimed that Erwin told him that Siko "said that he 

couldn't stand all the 103(g)'s, and if he found oui who filed the 103(gfs; that they might as well 

put a gun to their head and committed suicide." (Tr. 45--46.) 

29 FMSHRC 414 
The next morning, Henson called Wilson from his home and ''told him exactly what 

Ralph told.me." {Tr. 48.) Wilson called Henson back and told him that they had a meeting with. 

MSHA Special Investigator Jim Boyle at 3:00 p.m. at Steve's Grocery. At the meeting,: when 

Boyle fo&med that the statement had not been made to Henson, but to another miner, it was . 

decided that Wilson would go to the preparation plant and talk to the miner. 

Wilson and Erwin met in the bathhouse shortly before the afternoon shift began at 4:00 

p.m. Erwin testified he that talked with Wilson for about a minute and a half. He told Wilson 

what Siko had said to him and when Wilson asked him ifhe wanted to pursue a 105(c) 

complaint, he said no. (Tr. 102, 126.) 

. Wilson testified that when he spoke with Erwin, "[i]t was a very short c~nversation, 

Ralph confirmed that Mr. Siko had made statements to him, but he also excused it as Mr . .Siko 

having a bad day. "2 {Tr. 223-24.) Wilson maintained that Erwin told him that Siko had. said that 

"whoever was filing 103(g)'s might as well commit suicide. And there was something about, 

'his ass is mine,' or something to that effect." {Tr. 224.) He later testified that: "My best 

recollection of what the man told me, is that whoever's filed the 103(g) might as well go ahead 

and commit suicide, pull the trigger, his ass is mine, when I find him." (Tr; 255.) Wils<;m also 

declared that when Erwin related this, he used a gesture of his hand as. a gun and put his finger in 

his mouth. {Tr. 256.) 

Cupps testified that when he was leaving work on January 20, Henson asked him to come 

into the control room and when he anjved, Henson told Erwin to tell him what he had·heard. He 

recounted that "Ralph said, well, I done told you, fyfy'. Henson, you just tell him, and then if you 

need it changed, I'll make it correct. He said, okay. So Tommy told me." (Tr. 152.) He said 

that Tommy told him: · 

Well, he had told me, which I didn't know anything about it 

at the time 'til they told me there in that room. And he said, well, 

he said that he had talked to Mr. Siko, and said Mr. Siko told him 

that whoever called that 103(g) in, that might as well put a gun, I 

thought he said, in the roof of his mouth, and pull the trigger, in 

other words, just might as well kill yourself. Because if he found. 

out who it was, his you-know-what was his, referring to your 

backside"' 

(Tr. 153.) Cupps further stated that when Hensonhad finished, Erwin "told us everything that he 

said, it was true, and he was real nervous." (Tr. 153.). 

2 Wilson concluded after talking with Erwin that there were "no grounds to pursue a 

105(c)." (Tr. 225, 256.) 

29 FMSHRC 415 
There is a big difference between what Erwin testified that Sileo said to him and what 

Henson, Wilson and Cupps claimed Erwin told them Sileo said to him. In addition, Erwin also 

testified that Sileo never made a hand as a gun gesture and put it in his mouth, or to his head. 

(Tr. 109, 118.) And he further testified that he did not make such a gesture when he told Henson, 

Wilson and Cupps what Sileo had said. (Tr. 118.) Furthermore, Erwin testified that he told 

Cupps verbatim what Sileo had said to him. (Tr. 103-04.) He did not say anything about letting 

Henson do his talking for him. Indeed, he did not even mention Henson being present when he 

talked to Cupps. 

Henson testified that when Erwin told him about the conversation, Erwin did not say or 

demonstrate that Sileo had made any hand gestures. (Tr. 65.) Henson also stated that when he 

related the conversation to Wilson he did not mention that Sileo had made any hand gestures. 

(Tr. 74.) Yet, Wilson maintained that everyone who told him what Siko had said used thehand 

as gun gesture, testifying that "[m]y memory is that's the only version I'd ever heard .... " (Tr. 

241J . 

I find that the only credible versions of what Sileo said to Erwin were offered by Siko and 

Erwin. The rest were based on second arid third hand hearsay. At best, they demonstrate how 

information becomes garbled as it is passed from person to person. At worst, they evidence 

deliberate fabrication. It is not necessary to decide which in this instance. 

Sileo admitted at the trial that he had forgotten the discussion with Erwin, until Erwin was 

deposed. (Tr. 374-76, 382.) He further admitted that when he was deposed on July 18, 2006, in 

response to the question of whether he had "ariy conversation with a UMW A member who had, 

and had indicated anything about, talked anything about 103(g) complaints on the 17th [of 

January]," he answered that he had not. (Tr. 375-76.) He explained that after Erwin was· 

deposed, "I went through my notes, my personal records of production, line people back to the 

plant, etcetera, etcetera, and realized that I was there and did talk to Ralph that night." (Tr. 382.) 

His lack of memory and denial that he talked with anyone about the 103(g) complaints on 

January 17 are not significant. The failure to remember an offhand remark made while 

exchanging pleasantries with a miner some six months prior does not demonstrate duplicity. Nor 

does answering "no" to an open-ended question as whether he had talked to any miner about the 

complaints. As Siko testified: "lhad no memory of that one event, because I was in, dropped off 

the letter, the note of what we were going to do, spoke to the foreman, passed Ralph, and out the 

door I went." (Tr. 385.) He went on to say: "I move around a lot, and talk to a lot of people, and 

I got a lot of things going on there." (Tr. 385.) Consequently, I find that Siko's credibility is not 

adversely affected by these apparent inconsistencies. 

Moreover, with regard to the statement to Erwin, Siko's credibility makes little difference 

since relying solely on what Erwin related that Siko said, there was no violation of the Act. In 

some circumstances, what Sileo said could have a chilling effect on miners; for instance, if he 

said it to the miner who had made the complaint; or to a group of miners, or to union 

29 FMSHRC 416 
representatives. Here, however, the stateme_nt was made spontaneously an4 ~thout apparent 

forethought in response to Erwin asking him how he wa~ doing: While it expressed his 

frustration, it was made in the context of ventfug to one of the .miners he thought he knew and 

was friendly with, not as a threat that it should not happen again. · · 

. ', . . . . . 

Certainly, Erwin did not take it as a threat.· Ile testified that he thought Siko was talking 

about the company as a whole being at risk, rather than about taking actions against individual 

employees. (Tr. 111.) He further stated that he told Henson what had happened only to warn 

him that Siko was in a bad mood; he did not say to Henson, or anyone.else, that Siko was 

threatening miners. Thus,_while statements can be violations.9f the Act if they have a chilling 

effect on miners exercising their .rights under the Act, this was not such a statement and did not 

have such an effect. Accordingly, I conclude that this statement was not a violation of section 

105(c). 

The Statement to Cuiws-and Wilson 

Cupps, who in January 2006 was Centr~ Control Room Operator working the day shift, 

testified that Siko routinely-called him two or three days a week, or more, t<;> check on how the 

shift had gone and what the production was. (Tr. 142~} He said that on January 18, at about 3:55 

p.m., Siko called him to ask abou~ production. (Tr.J4:3.) At this point in his testimony, in 

response to an iμnocuous question, Cupps gave the following monologue: 

Q. Let me ~top you. Did you ask him about his day, did he ask 

about your day, was. there any small talk beforehand? 

A. Oh, he asked me about the plant, yeah, just small talk, then he 

went in about this 103(g). I told him - yeah, he asked me how the 

plant was doing, Hold him it was doing good, because we'd had a 

good run that day. You know, we'd had a good yield, good run 

and everything. I told [him] it was good. . 

And he said, well, things ain't going that good with me. And I 

said, sir? He said, things are not going that good with me. I said, 

what are you talking about? He said, relating to these 103(g)'s and 

these Orders I got up there at the plant, he said, ldon't_think it's 

going too good at all. 

And up until we'd went down with the dryer, you know, we'd 

done .good. And then he just, like he cpanged into another gear, 

you want to say, or something. And he started saying these tactics 

and about Mr. Wilson. 

And about that time Mr. Wilson stepped in the door. And I 

29 FMSHRC 417 
(Tr. 143-46.) 

asked him, I said, well, Mr. Siko; I said you related to Mr. Wilson, · 

do you want to talkto him, hejust entered the room. He said, no, I 

don't want to talk to him, he'd better not be up there. 

I said, well, Mr. Siko, I'm going to tell you again, he's here, do 

you want to talk to him. He said, I done told you, John, I don't · 

want to talk to him and he'd better riot be in there. 

In the meantime, I'd motioned for Mr. Wilson to coine over 

there. ·1 felt like if the man was going to bring Mr. Wilson's name 

up, Mr. Wilson needed to hear the conversation.• Because he was 

relating to him in an aggravated·voice, and he was raising his 

voice. 

And then, I went into attach [sic] them, and he 'told me, said, 

let me tell you something about that 103(g) and them orders up 

there at the plant. He said, like a red light/greeri light issue, John, 

I'm going to put it to you that way. He said, the people that 

follows after Mr. Wilson and his tactics, files these 103(g)'s in, and 

things of that, and causes problems towards this Company, is 

interfering with the operation on the safety issues~ he said, them red 

light people, they'll no longer be employed here, they'll not work 

for us. He said only green light people that go through the green 

light that don't cause no problems, keeps their mouth shut, don't 

cause no problems with safety, he said, them kind of people will 

work here. 

And it was a real aggravated voice. I mean, he was raising his 

voice. You could have heard him as far as from here to you, just 

about, in that room. The room's not that big, but you could have 

heard it probably that far. 

Cupps asserted thatthe call lasted until 4:10p.m. or4:12 p.m. (Tr. 175.) He said that 

Siko was so loud that Wilson could have heard him over by the door he had come in. {Tr. 186-

87.) He further related that when Wilson came over by him, he turned the handset receiver so 

that Wilson could also listen. {Tr. 186-87.) He was adamant that he did not put the call on the 

speaker phone. (Tr. 177.) He also testified that his foreman came into the control room during 

the telephone call to ask for the performance sheet that Cupps' fills out at the end of the shift. 

(Tr. 148.) 

29 FMSHRC 418 
Wilson testified that he went upstairs to the ccmtrQl roomat 4:00 p.m. looking for Cupps. 

(Tr. 225-26.) Be said he first stuck his head in the foremen's office and said: "Where's Cupps?" 

(Tr.260.) Then, he recounted that he went through an open do()r.into the control-room and saw 

Cupps on the telephone. {Tr. 228.) He said that he heard Cupps refer to him, then Cupps 

motioned him to come over and as he approached Cμpps he,could 11ecu;- someone, whose voice he 

recognized as Siko's, screaming on the.phone .. (Tr.228-29, 267.) At that point, he asserted that 

the call was put on the speaker phone. {Tr. 229.) He testified that he heard Siko say: 

I want to talk to you about these 103{gYs:and safety complaints, 

And there's two types ofp~ople, re4 light people are the 

people that file safety complaints or support Tom Wilson in his 

filing of complaints, and green light people, which are people that 

keep their mouths shut. And when all is said and done, only green 

light people will work for this company. 

That went through two rounds of the same thing being said 

twice. 

(Tr. 229-30.) Wilson estimated that the ,call ended at 4:05 p.m. and that it lasted no longer than 

four or five minutes, {Tr. 266.) 

Siko testified that he -did not nprmally call the control room operator at the end of the 

shift to get the production report~ {TL 283.) He said that he called the foremen's office to get . 

that information. {Tr. 283-84.) He stated that ifhe called the control room operator for such 

information, it would be in the middle of a shift. {Tr. 284, 361-62.) 

Siko denied making a tekphone call to Cupps in the control room on January 18. (Tr. 

316-17 .) He testified that he w~s in the underground. mine with Benjamin Statler, President and 

CEO of the company, Barry Dangerfield, COO of the company, and Michael McLaughlin, Mine 

Superintendent for the underground mine, from about 8:00 a.m. until about 5:45 p.m. on that day. 

{Tr. 313-16, 330-31.) He said that from about 2:00 p.m. the group "spent the rest of our 

afternoon in that return [ 11 West Section], trying to get that return rock dusted so we could start 

that section back up. And that lasted until about 4:30, quarter until 5:00." {Tr, 314.) He 

estimated that the closest telephone to where they were was "900 to 950 feet away." {Tr. 342.) 

. Siko's testimony was supported by Dangerfield and McLaughlin. McLaughlin testified 

that Siko did not mention having to make a telephone call, did not remove himself from the 

group and did not make a telephone call at 4:00 p.m. on the 18th. (Tr. 456.} Dangerfield 

testified that the nearest telephone ''was almost a thousand feet away, at the top end of that 

section." {Tr. 487-88.) He said there was no doubt in his mind that Siko did not make a 

telephone call to the prep.plant at 4:00 p.m. because "[t]here's no way Jim could have made a 

call. There's no phones there. We were in the return." {Tr.488.) 

29 FMSHRC 419 
I credit the testimony of Siko over that of Cupps and Wilson. His testimony is 

corroborated by witnesses who are not directly involved in the complaint. ·It is plausible and not 

inherently incredible. Except for Cupps and Wilson, it is not contradicted by any other witness, 

either directly or indireetly. In addition, he has been in the mining business for 37 and a half 

years and is familiar with section lOS(c). (Tr. 323-24.) It is difficu.ltto believe that he would 

commit such an obvious violation of the Act by making overt threats to the chairman of the local 

union mine committee. · 

On the other hand, there are inconsistencies in the testimony of Wilson and Cupps. 

Further, portions of their testimony are contradicted by other witnesses and documentary 

evidence. Finally, Cupps' manner and demeanor while testifying, specifically, his verbosity, his 

admitted embellishments and exaggerations, his false modesty and his propensity for answering 

questions not asked, further diminish his credibility. 

Wilson's and Cupps' testimony had some obvious incompatibilities. Cupps said he let 

Wilson listen in on the handset, Wilson said the call was on the speaker phone. Wilson said the 

call only lasted about five minutes, Cupps claimed it lasted 15 to 17 minutes. These are not 

matters on which disagreement would normally be expected. 

Furthermore, not only was the testimony of Wilson and Cupps inconsistent, but Henson, 

the control room operator who followed Cupps on the afternoon shift, testified that he arrived in 

the control room at 4:00 p.m. on January 18 and that Cupps was not there. (Tr. 78-80.) This 

testimony is substantiated by Oak Grove's timekeeping system. A printout ofthe·Kronos · 

Timekeeping System shows that Cupps clocked out at 3:57 p.m. and·Henson clocked in at3:47 

p.m.3 (Tr. 530, Resp. Ex. 1.) 

On cross-examination during the Complainant's case-in-chief, Cupps testified that he 

usually clocks out at 4:00, that he could notremember whether he had already clocked out before 

receiving Siko 's call, but that normally, once he clocks out he leaves~ (Tr. 176.) However, after 

the timekeeping evidence was introduced, Cupps was recalled in rebuttal. He first testified that 

there was a variance between the time clock and the clocks on the computers in the control room, 

with the clocks in the control room being ''behind, and either when you first started out it would 

be fifteen minutes faster or slower, and it just varies both ways, really." (Tr. 573.) Later, he was 

asked if he had any recollection of clocking out and then returning to the control room and he 

3 The Secretary objected to the timekeeping evidence on the grounds of surprise in that 

the Respondent had not furnished a copy of it prior to trial. The objection was overruled. (Tr. 

534.) The Secretary objects to it again in her brief. (Sec. Br. at 30.) This is the: only completely 

objective evidence in the trial. If counsel for the Respondent was aware ofitprior to the trial, he 

should have furnished it to the Secretary. Nevertheless, the possibility of such evidence should 

have been obvious to the Secretary, and could have been requested prior to trial. There is no· 

indication that the exhibit was either not authentic or fabricated. Consequently, the objection is 

again overruled. 

29 FMSHRC 420 
answered: "Probably did. I probably went down the hall and clocked out and made a phone - or 

SOll1ething - went back up fuere and ans_wered the phone. You know it could have very well 

happened that a way." (Tr. 579.) This testimony, to the extent it makes any sense <:ltall, is not 

credible. 

Additionally, Michael Blevins, Oak Grove Resources Safety Director, testified that he 

was on the second floor of the preparation plant sometime-between 3:45 p.m. to3:55 p.m. and 

stopped in the control rom:n. He said that. Henson was in the control room, but Cupps was not. · 

(Tr. 411.) He further testified that he was on the second flo()r until 4: 15 p.m. or 4:30 p.m. a11d. he 

never saw Wilson. (Tr. 411-12.) 

.Lastly, Kenneth Young, the maintenance fore111an, testified that he was in the foremen's 

office at4:00 p.pi. on January 18. and did not see Wilsonin the area. (Tr. 515-i6.) Y.oung also 

testified that Siko called the foremen for production information and only called the control room. 

"at times." (Tr. 521.) Another foreman; Dave Walters, testifi,ed. that he was ·filling in for the 

superintendent and was working between the superintendent's office; which is also on the second 

floor a short distance from the foremen's office, and the foremen's office at 4:00 on January 18. 

He said that he did not see .Wilson on ~e second floor at all that day. (Tr. 557 ~) He further 

testified that he did not go into the control room to get-the performance report from Cupps. (Tr. 

561.) Finally, both Young and Walters testified thattheydid not hear any "screaming" coming 

from the speaker phone in the control room. (Tr. 520, 569.) 

In weighing this evidence, I find that a preponderance ofthe credible evidence~supports 

the Respondent's case, rather than the Complainant's. Accordingly, I conclude !hat Siko did not 

call Cupps (and Wilson) as alleged and that there was no violation of section 105( c) of the Act. 

The Statement to Henson 

The Secretary argues that Siko also·m~dea statement to.Henson that was a violation of 

section 105( c ). Little attention was paid to the alleged statement by the parties at ~e· trial or in .. 

their briefs. Indeed, it is questionable whether it was part of the complaint. Nonetheless, since it 

was mentioned, it is discussed below .. 

Henson testified that on either the 18th or the 19th, he was not sure which, Siko called 

him at the first part of the shift to ask "how much raw, how much clean, we'd run." (Tr. 51.,.52.) 

He then averred that Siko said that ''we couldn'tlive with all the federal violations and 103(g)'s 

that was being called, and that he[sic] was either going to .have to be with the [sic], for the 

Company or against the company. And the ones that was going to be against the Company 

wasn't going to stay there." (Tr. 52.) 

Siko testified that h~ did notmake such statements to Henson at anytime during the week 

of January 15. (Tr. 319.) He said: "tdon't reroember having any [conversation with Henson], 

because it was a very outstanding or marked week at the preparation plant with the series of 

29 FMSHRC 421 
events that transpired over there." (Tr. 320.) Although this statement is confusing, or it was not 

transcripted accurately, the inference drawn from it is that Siko remembered that he did not make 

such a statement because the week stood out in his mind. · 

I find that the Complainant has not proved that Siko made the alleged statement. Henson 

was the local union president. He was closely involved with Wilson in the safety inspection, in 

investigating the situation involving Erwin, and in filing the 105( c) complaint. Yet this 

allegation was not included in the complaint. It could be argued that the incident with Erwin was 

only alluded to in the complaint because Erwin did not want to be involved, but no such reason 

exists for the omission of the Henson allegation. Unless it did not occur. 

Contrary to Henson's and Cupps' testimony, it does not appear that Siko routinely and 

frequently called them for production information and that, therefore, his calling them was not 

out of the ordinary;4 More credible is the testimony of Siko and his foremen that he only called 

the control room at unusual times, -such as the middle of the shift, or on his way to work in the 

early morning, or when he could not reach any one else. 

This purported statement appears to have been an afterthought at the trial and in the 

Complainant's proposed findings. In a 39 page brief, the Complainant spent fewer than four 

paragraphs discussing it. Even more significantly, it is not mentioned in the Interv-enor' s brief at 

all. 

Consequently, for all of these rea5ons, I conclude that Siko did not make the alleged 

threatening statement to Henson. 

Conclusion 

As mentioned at the beginning, there is no way to reconcile the testimony of Wilson, 

Cupps and Henson with that of Siko and the other management witnesses. One side or the other 

was not telling the truth, but, for the most part, neither side's presentation was implausible or 

incredible. Furthermore, both parties had reason to fabricate. It will serve no purpose to 

speculate on the motive for such untruths. It was apparent from the trial, however, that 

management and the union seem to have a very adversarial relationship at this operation. 

Consequently, in arriving at a decision in this matter, I have relied on the inconsistencies iii the 

testimony and the fact that the Complainant has the burden of proving its case by a 

preponderance of the evidence. Applying those factors, I conclude that the Complainant has 

failed to prove that the company violated section 105(c) of the Act in any of these instances. 

4 Incredibly, if the call to Henson was made on the 18th, the testimony of Henson and 

Cupps is conflicting, unless one believes that Siko called Cupps atthe end of his shift, and then 

called Henson at the beginning ofhis following shift, to ask for the same.information which he 

had supposedly already gotten from Cupps. 

29 FMSHRC 422 
Order 

The Complainant, Thomas F. Wilson, has not established that James E. Siko made 

statements which constituted adverse action under the Act. Accordingly, his Discrimination 

Complaint filed against Oak Gr~ve Resources, LLC, and James E. Siko, under section 105( c) of 

the Act is DISMISSED. 

Distribution: 

d~~· T. Todd Hodgdon 

Administrative Law Judge 

Brian W. Dougherty, Esq., -Office of the Solicitor, U.S. Department ofLa:bor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 · · · 

Thomas A. Smock, Esq., Michael D. Glass, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, 

P.C., Four Gateway Center, Suite 400, 444 Liberty Avenue, Pittsburgh, PA 15222 

. . .. 

Patrick K. Nakamura, Esq., Nakamura, Quinn& Walls~ LLP, Lak:eshore Park Plaza, Suite 130, 

2204 Lakeshore Drive, Birmingham, Alabama 35209-6701 

Mr. Thomas F. Wilson, Miner's Representative, {]nited Mine Workers of America, 9326 Keenes. 

Mill Road, Cottondale, AL 35453 

/sr 

29 FMSHRC 423 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

May30,2007 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of LAWRENCE PENDLEY, 

Complainant 

V. 

HIGHLAND MINING COMP ANY, LLC, 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2007-265-D 

MADI CD 2007-05 

Mine ID 15-02709 

Highland No. 9 Mine 

Appearances: Jonathan Hammer, Esq., James Brooks Crawford, Esq., U.S. Department 

of Labor, Arlington, Virginia, on behalf of the Complainant 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

on behalf of the Respondent 

Before: Judge Barbour 

ORDER OF TEMPORARY REINSTATEMENT 

On March 22, 2007, Lawrence L. Pendley filed a discrimination complaint with the 

Secretary of Labor's Mine Safety and Health Administration (MSHA). The complaint alleged 

Highland Mining Company ("Highland") discharged Pendley as the result of"[ c ]ontinuous ·. · 

harassment from filing [a] safety complaint in October 2006." Appl. for Temp. Reinstat 't, Exh. B 

2. 1 The complaint was investigated by MSHA Senior Special Investigator Kirby Smith, and on 

April 25, 2007, the Secretary filed an Application for Temporary Reinstatement. The application 

seeks Pendley' s reinstatement as a maintenance/parts delivery person, the position he held on 

March 21, or to an equivalent position at the same rate of pay and with the same benefits. 

In the application the Secretary expanded on Pendley's complaint and asserted Pendley 

was discharged "because the company apparently believed ... based upon [Pendley' s] previous 

protected activity ... [he also] was making safety complaints regarding the condition of the 

mining equipment in the ... mine, including complaining ... coal had accumulated on the 3C 

belt in depths from 12-24 inches." Appl. 2. The allegation about a prohibited accumulation 

1

The complaint lists March 21, 2007, as the "Date ofDiscriminatory Action." Appl.for 

Temp. Resins! 't, Exh. B at 1. Pendley was suspended with an intent to discharge on March 21 

and was discharged on March 26. 

29 FMSHRC 424 
referred to an oral complaint telephoned to MSHA on March 21 by an unidentified miner. The 

telephoned complaint resulted in an inspection pursuant to section 103(gj of the Act (30 U.S.C. 

§ 813(g))[2

] and to the citation of Highland for a violation of30 C.F.R. § 75A00.3 · 

The case was assigned to me on April 25, 2007. On the following day, in a conferenced 

telephone conversation with counsels and Pendley, counsel for Highland stated the ~ompany 

desired a hearing on the application. I replied I would be unable to hear the matter within the ten 

days specified in Commission Rule 45(c). 29 C.F.R. § 2700.45(c). The first date I could hear 

the case was May 22, 2007, and I offered to request the case be reassigned to:another judge. 

Counsels and Pendley advised me they were willing to wai~ethe rule's tiillelines and go forward 

on May 22. The matter was heard on that date in Evansville, Indiana. At the close of the 

hearing, counsel for Highland moved the application be dismissed. I deferred ruling. For the 

reasons stated below, the motion is DENIED and the Secretary's application is GRANTED.· 

THE LAW 

When a discharged miner lodges a discrimination complaint, the Secretary shall 

investigate the complaint,· and if she "finds the complaint was not frivolously brought" she may 

apply for the complainant's reinstatement pending a final order on the complaint. .30 U.S.C. § · 

815(c)(2). If a hearing is held on the application, "the scope of ... [the] hearing ... is limited to 

a determination as to whether the ... complaint was frivolously brought." 30 C.F.R. 2700.45( d); 

see 30 U.S.C. § 815(c)(2). In Jim Walter Resources, Inc. v. Federal MineS.afety and Health 

Review Commission, 920 F. 2d 738-747 (11th Cir. 1990), the court described a ''not frivolously 

brought" determination as a finding the complaint was "not insubstantial or frivolous" and "not 

clearly without merit." 920 FMSHRC at 747 and n.9. · 

As I noted in a letter addressed to counsels prior to the hearing, while the burden of proof 

is on the Secretary, the burden is light. Cormirission Judge Arthur Amchan well described how a . 

judge should analyze whether the.Secretary has ca.Tried the burden. If the judge concludes it is 

"possible, but by no means certain, that the Secretary could prevail in a discrimination 

proceeding," then the application should be granted. Secretary on behalf of Loy Peters, etc. v. 

Thunder Basin Coal Co., 15 FMSHRC 2290, 2293(November1993); ajf'd 15 FMSIIR.C 2415 

2

Section 103(g) in pertinent part provides that a miner with reasonable grounds to believe 

a violation of a mandatory safety standard exists may file a complaint with MSHA and, upon 

receipt of the complaint, the agency shall .conduct a special investigation "as soon as possible." 

30 U.S.C. § 813(g). The section also provides the complaint be reduced to writing and a copy be 

given to the operator no later than the time of inspection. The section further mandates the name 

of the. miner making the complaint shall not appear in the copy. Id,. . ' . . 

3

Section 75.400 prohibits accumulations of c~al dust, loose coal and other combustible 

materials in the active workings of a mine. 

29 FMSHRC 425 
(December 1993).' The conclusion must be made within the framework of the elements of proof 

ofa Mine Act discrimination proceeding, which means, among other things, the judge must 

determine whether the Secretary has shown the complainant engaged in protected activity, and 

that the adverse action was motivated in part by that protected activity. Secretary ex rel. Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. V. Marshall, 663 F. 2d 1211 (3rd Cir. 1981); Secretary ex rel. Robinette 

v. United Castle Coal Co., 3 FMSRHC 803 (April 1981). 

PROTECTED ACTIVITY AND REINSTATEMENT 

At the heart of the contention Pendley's discharge violated the Act is the allegation 

Pendley was let go because of his past discrimination complaints and because Highland's 

management believed he filed the section 103(g) complaint with MSHA. The filing of 

complaints under sections 105( c) and I 03(g) is protected. An operator cannot discharge an 

employee because he or she engaged in protected activity. The operator can, however, prevail by 

showing the discharge was in no part motivated by protected activity, or by proving it also was 

motivated by the miner's unprotected activity and the operator would have taken adverse action 

for unprotected activity alone. Pasula 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817-818; 

see Eastern Assoc. Coal Corp. v. FMSHRC, 13 F. 2d 639, 642 (4th Cir. 1987). 

There is no doubt Pendley engaged in protected activity by filing a complaint with the 

Secretary pursuant to section 105( c )(I) prior to his discharge. The Secretary investigated that 

complaint and, on September 25, 2006, she filed a complaint on behalf of Pendley alleging he 

was suspended for three days without pay for making safety complaints to MSHA. The . 

September complaint involved the hazardous sudden stopping of the mine hoist while it was 

bringing Pendley underground. Pendley believed the incident involved Jack Creighton, a fellow 

miner. Pendley also claimed Creighton harassed him in various ways and that the harassment 

wa.S a safety risk. The Secretary's complaint was docketed as KENT 2006-506-D.4 

4

As the parties and I are well aware, the docket has a convoluted history. After the 

complaint was filed, it was the subject of a settlement agreement between the Secretary and 

Highland, a settlement I approved. Order Approving Settlement (January 18, 2007). Pendley 

objected to the settlement, claiming he was not a party to the agreement. The Commission 

treated the objection as a petition for review. It vacated the order approving the settlement, 

reopened the case and remanded the matter to me for "appropriate proceedings." 29 FMSHRC 

_(April 3, 2007). Prior to and at the temporary reinstatement hearing, counsels, Pendley and I 

discussed the nature of the further "appropriate proceedings." We agreed the remanded case 

should effectively be stayed pending a decision by the Secretary whether to file a complaint on 

Pendley's behalf based on Pendley's March 22, 2007, complaint (the complaint which initiated 

the temporary reinstatement application). We further agreed if a discrimination proceeding is 

filed following the completion of the Secretary's investigation of the March 22 complaint, 

Docket No. KENT 2006-506 will be consolidated with that proceeding and the cases will be 

disposed of together. With this in mind, it is imperative the Secretary promptly complete her 

29 FMSHRC 426 
I grant the application for temporary reinstatement because I find it is "possible, put by,no 

means certain" (Peters, 15 FMSHRCat 2293; ajf'd 15 :FMSHRC 2415 (December 1993)) the 

Secretary could prevail on the allegation Pendley was suspended ''based on previous protected 

activity." Appl. for Temp. Reinstat 't at 2. The Commission has recognized, "Direct evidence of 

motivation is rarely encountered; more typically, the only available evidence is indirect." 

Secretary of Labor on behalf of Chacon v. Phelps D9dge Corp., 3 FMSHRC 2508, 2510 

(November 1981), rev'd on other grounds, 709 F~2d 86 (D.C. Cir. 1983), In Chacon the 

Commission listed some of the common circumstanti.μ indicia of discriminatory intent: (1) tQ.e 

knowledge of the protected activity;' (2) hostility or animus toward the protected activity; (3) 

coincidence in the time between the protected)~.ctiyity and the adverse action; and ( 4) disp~te 

treatment of the complainant. See also Secretary of Labor on behalf of Baier v. Durango Gravel, 

21FMSHRC953,957(September1999) .. 

Here, the company obviously knew ofthe. pri0;r complaint involving the hoist and the 

alleged harassment of Pendley by Creighton. · Pendley' s suspension on March 21, 2007, an<;l his 

termination of March 26 followed another run".° in with <:;reighton, a c911frontation also involving 

the hoist. , Thus, the M(;lfch 21 incident with Creighton. again raised for the company the alleged 

problems with the hoist and Pendley's prior complaints about Creighton's alleged harassment. 

On the same day as the March 21 events, Pendley was suspended with an intent to discharge. 

There was a clear coincidence in time between the protected activity and Pendley's discharge. 

In addition, there was apparent disparate treatment handed out to Pendley in that 

following the disagreement with Creighton after the hoistincident on March 21, Pendley was 

suspended with an intention to discharge and then was fired. One of the reasons the company 

gave for termin,ating Pendley' s employment was he assaulted Creighton. Resp. Exh. 2. {The 

"assaulf'i~y<>lves adisputed push or shove Pendley allegedly gave Creighton when Pendley 

encoilntered Creighton at the hoist control panel on March 21. At the time, Creighton was 

allegedly participating in a safety test of the hoist.) The company maintained this was one of the 

reasons for terminating Pendley, because after a prior incident with Creighton - an incident about 

which Pendley complained - Pendley had been given a "last and final warning" by the company 

because he "threatened violent behavior." Exh, R-1. However, Creighton, who agreed he had 

difficulties involving Pendley, was not subject to the discipline given Pendley. ·Creighton was 

reprimanded, but never was given a "last and final ... warning," even though he agreed he had 

threatened to shove a gun down Pendley' s throat. 

The fact Pendley was terminated following another occurrence involving the hoist and 

Creighton, while Creighton was not given a last and final warning even after he "threatened 

violent behavior," leads me to conclude Pendley's complaint was not frivolous and it is possible 

the Secretary could prevail. 

The possibility of prevailing is enough to warrant Pendley' s temporary reinstatement. 

investigation. 

29 FMSHRC 427 
However, the holding should not be taken as an indication the Secretary ultimately will prove the 

company violated section 105(c)(l) of the Act. 30 U.S.C. § 815(c)(l). The company argues, and 

may well establish, even given Pendley' s protected activity, Pendley still would have been 

discharged. The company alleges one reason for his discharge is that he harassed and orally 

abused the company's controller, Sheila Gaines; its payroll clerk, Sharon Hubbert; and its mine, 

account manager, Roger Wise. It further alleges the March 21 incident involving the hoist and 

Creighton actually constituted interference by Pendley With a safety procedure and a physical 

assault on Creighton .. See Exh. R-2. However, the merits of these.contentions are beyond the 

scope of this order. Rather, they constitute at leasrpart of a defense the company will 

presumably put forward at a hearing if a discrimination complaint is filed by the Secretary. 

Finally, although in seeking temporary reinstatement the Secretary alleged the .filing of a· 

section 103(g) complaint and the resulting issuance of a violation based on that complaint was a 

reason for Pendley's dismissal, she essentially offered little evidence to link the complamt and 

the citation with the allegedly prohibited silspension with intent to discharge. Given my finding 

the evidence regarding Pendley' s prior protected complaint, his March 21 :conflict with Creighton 

and his subsequent suspension and termination is sufficient to send Pendley temporarily back to 

work, I do not need to decide if the allegations regarding the section 103(g) complaint and the 

resulting citation are valid reasons for Pendley's reinstatement. I note, however, the Secretary's 

evidence is what can charitably be described as ''weak." fudeed, a review of the record confirms 

the Secretary established little more than the section 103(g) inspection and the resulting citation 

occurred the same day as Pendley's suspension with intent to discharge. Should a section 

105(c)(2) (30 U.S.C. § 815(c)(2)) complaintbe filed by the Secretary, more than what was 

offered will have to be shown to establish the section 103(g) complaint and the citation are 

reasons to find Highland discriminated against Pendley. At this point, however, such concerns 

are matters for another day. The only issue now .before me is whether Pendley's complaint was 

:frivolously brought, and I conclude the Secretary has established it was not. 

ORDER 

Highland IS ORDERED to reinstate Lawrence Pendley to the position from which he 

was suspended with intent to discharge on March 21, 2006, or to an equivalent position, at the· 

same rate of pay and with equivalent duties. 

J7vv;.dfl5ffa/t~ David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

29 FMSHRC 428 
Distribution: (Certified Mail and by Facsimile) 

Jonathan R. Hammer, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson 

Blvd., Suite 2200, Arlington, VA 22209-2247 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park 

Plaza, Suite 310, Lexington, :KY 40517 

/ej 

29 FMSHRC 429 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

June 1, 2007 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDJNG 

Docket No. KENT 2006-120 

A.C. No. 15-18280-74581 

v. 

CENTRAL APP ALA CHIA MINING, LLC, 

Respondent 

Hunts Branch Freeburn 

Appearances: 

Before: 

DECISION 

Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, 

Te:nnessee, on behalf of the Petitioner 

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, 

West Virginia, on behalf of the Respondent 

Judge Barbour 

This case is before me on a petition for the assessment of civil penalties filed by the 

Secretary of Labor on behalf of her Mine Safety and Health Administration (MSHA) against 

Central Appalachia Mining, LLC (Central Appalachia or the company) pursuant to sections 105 

and 110 of the Federal Mine Safety andHealth Act of 1977 (the Mine Act or Act) (30 U.S.C. §§ 

815, 820). The Secretary alleges Central Appalachia is responsible for two violations of the 

Secretary's safety standards for surface coal mines. She also alleges the violations were 

significant and substantial contributions to mine safety hazards (S&S) and were caused by the 

company's moderate negligence. The Secretary seeks civil penalties totaling $5,228. The 

company denies the allegations. The case was tried in Pikeville, Kentucky. The parties have 

submitted helpful briefs. 

The citations involve events surrounding the blasting of a highwall at Central 

Appalachia's Hunts Branch Freeburn Mine, a surface coal mine located in Pike County, 

Kentucky. The highwall was drilled, loaded and blasted by Virginia Drilling, the company's 

independent contractor. 1 The blast went awry, sending flyrock into the area below and in front of 

1

Roger Cantrell, Central Appalachia's safety director, testified Virginia Drilling contracts 

"to do the drilling and the blasting for surface coal mines in different areas of [Kentucky]." Tr. 

202. At the mine, Virginia Drilling did everything with regard to explosives. In Cantrell's 

opinion, it provided a "complete turn key job." Tr. 203; see also Tr. 203-204. 

29 FMSHRC 430 
the highwall (''the pit"), an area where miners were working. 2 A miner was struck and injured. 

MSHAinvestigated and, as a re~ult of the investigation, the agency alleged tlie company's 

ground control plan failed "adequately [to] provide precautions ... to prevent flyrock or to 

remove miners to a safe location" and the company failed to give "an ample warning" to miners 

in the pit prior to the blast. Gov't Exh. 7, Gov't Exh. 6. 

THE ACCIDENT AND THE INVESTIGATON 

Robert Bellamy works for MSHA as a mining engineer in the agency's Pikeville, 

Kentucky, office. As a membe:J," of the Roof Control and Impoundments Department, .llls duties 

include reviewing Il}ining plans submitted to MSHA, plans dealing with roof control, 

impoundments, and ground connol. He also investigates accidents for the agency. Tr. 26. Prior 

to joining MSHA, Bellamy worked for three to four years as a certified blaster. Tr. 27, 115. 

On July 13, 2005, Bellamy learned there had been an accident at tlie company's mine. He 

was assigned to investigate it, and on the following day he wentto tμe.mine. Tr. 30-31. On July 

14, the accident site was essentially the same as on July J 3, the day the accident occurred. Tr .. 

32. Bellamy took several photographs of the site. He took a photograph from the top of the 

high wall. Tr. 35, 38. Gov't Exh. 1. The photograph shows several pieces of equipment in the 

pit. Two are red in color. The largest of the two is the highwaU miner. It is the piece of 

equipment closest to the highwall. Tr. 36-37; Gov'tExh. 1. l'he smaller piece of equipment 

pictured to the right of the highwall miner is the generator. Tr. 37; Go.v't Exh. 1. Behind the 

miner and sloping away from the highwall is a ramp of coal. Tr. 38; Gov't Exh. 1. 

Bellamy also took a second photograph from the top of the highwall, but from a. location 

closer to the equipment. The photograph shows the same equipment and the same coal ramp 

depicted in the first photograph (Gov't Exh. 1). Tr. 39-44; Gov't Exh. 2. 

Bellamy took a third. photograph from the floor of the pit. The photograph depicts the 

highwall miner and a blue supply truck. The supply truck is next to the highwall miner. The 

photograph also depicts a yellow loader to-the le:tl of the miner and a white pickup truck to the 

right of the miner. Tr. 45, 49-50; Gov't Exh. 3.3 Although the damage is not visible in the 

photograph, Bellamy testified the highwall miner, the blue supply truck, the yellow loader and 

the white pickup truck were hit and damaged by flyroc;k. Several pieces of flyrock are visible in 

the photograph. Tr. 49; Qov't Exh. 3. 

2

"Flyrock" is defined in part as, "The rock fragments which are thrown and scattered 

during quarry ... blasting." U.S. Department of the Interior, A Dictionary.of Mining Mineral, 

and Related Terms 1968 at 450 (D:MMR. TJ. 

3

The pickup truck was used by then pit foreman, Dave Nichols. Tr.· 51. At the time of 

the hearing, Nichols no longer was employed by Central Appalachia. Tr. 186. 

29 FMSHRC_431 
A fourth photographshows the side of the highwall miner. To the left of the miner the 

rear end of the blue supply truck is visible, as are pieces of the truck's front fender. The fender 

was hit by flyrock, some of which is depicted. Tr. 46-47, 50; Gov't Exh. 4. 

A fifth, and final, photograph shows the front of the blue supply truck. In addition to the 

damaged fender, the photograph reveals "extensive damage" (Bellamy's words, Tr. 51) to the 

truck's engine compartment. Tr. 47-48; Gov't Exh. 5. The white pickup truck is pictured in 

back of the supply truck. Its passenger side door is damaged. Tr. 51; Gov't Exh. 5. 

Bellamy "informally" interviewed and questioned those working in the pit at the time of 

the accident. Tr. 52. Bellamy learned the shot causing the accident consisted of approximately 

48,000 pounds of AN-FO. Tr. 52.4 He also learned the highwall miner was moved into the pit 

six days before the accident. Once the miner was in the pit, two shots were fired. The shots were 

closer to the highwall miner than the July 13 shot, which meant on July 13, material from the 

previous shots was piled in front of the July 13 shot area. Tr. 126'"127. No flyrock traveled into 

the area of the highwall miner during either of the pre-July 13 ·shots, which is one reason neither 

Virginia Drilling nor the company anticipated flyrock problems on July 13. Tr. 53. 

Central Appalachia's foreman, Dave Nichols, testified on July 13, Jay Stewart, Virginia 

Drilling's blaster, spoke with him shortly before 4:05 p.m. As Nichols recalled, Stewart told him 

the blasters were "going to put a shot off[,] that ... [Nichols and his crew] were not in the blast 

area, that ... [they] were safe, [but] to ... [stay clear of] the highwall in case ... [the shot] 

shook the ground and something loose fell off." Tr. 190, Tr. 123-124. Nichols was sure Stewart 

did not say to remove miners from the area in front of the highwall. Tr. 123, 190. Nichols was 

not surprised by this because the shot on July 13 was farther away from the highwall miner than 

the previous shots. Tr; 190. 

After talking to Stewart, Nichols advised his crew Virginia Drill was going to fire a shot 

and to watchfor rocks coming offthe highwall after the shot, Tr. 134, 191. When Nichols 

spoke to the crew, the engines of the generator, the highwallminer and the loader were running. 

Tr. 192. Nevertheless, Nichols believed the crew heard what he said. However, after the 

accident, he learned the crew did not hear him. Tr. 192. · 

Nichols then went to the tailgate of his pickup truck. The shot was fired shortly 

thereafter. Tr. 56. Miners Steven Tackett and Travis Tackett were working near the highwall 

miner changing the miner's air compressor. Tr. 56. Steven Tackett told Bellamy they were not 

advised the shot would be detonated. There was no warning signal. They first learned about the 

shot when the AN-FO exploded. Tr. 55. 

Upon detonation of the shot, Steven Tackett jumped behind the miner, and Travis Tackett 

dove under the supply truck. Travis Tackett was not fast enough. He was struck in the leg by 

4

AN-FO is defined as "Amonium nitrate fuel oil blasting agents." D.M.MR.T. at 38. 

29 FMSHRC 432 
flyrock. Tr. 58. He suffered a compound fracture. Tr. 58.5 

Although affected miners in the pit did not }iear a warning, Bellamy ~eameci that Jive 

minutes prior to the shot, Virginia Drilling sounded an initial warning signal. Then, one minute 

before the shot, Virginia Drilling sounded a second signal. Bellamy agreed Virginia Drilling was 

responsible for signaling miners to warn then;i when a shot was about to go off. Tr'. 1~3-124. 

The signal was required so miners in the blasting area could leave or take cover'. tr. 66. To meet 

its responsibility, Virginia Drilling used a.truck-mounted siren. Tr. 63. During the:investigation, 

Bellamy asked Virginia Drilling personnel to position the truck where it had been ()l.l July 13, and, 

to sound the siren when the equipment in the pit was running. When .this was done, .he could not 

hear the siren. Tr. 60-63, 135; see Gov't Exh. 4. 

Nichols.also did not hear the five-:minute and one-minute warnings. Tr. 195 .. Nichols 

testified this was because of the noise.level in the pit. Tr. 196. Because it was not unusual for 

the noise in the pit to mask the sound of the siren, Nichols testified he relied on oral warnings 

from the blasters. He never questioned what they told him. Tr. 197, 200. 

As to whose responsibility it was to move the miners out of the blast area on July 13, 

Bellamy stated "a lot of responsibility ... [went] to ... [Virginia Drilling and its] blaster." Tr. 

103. He agreed, under the laws of the Commonwealth of Kentucky, "the ... blaster [was] 

actually in charge of the blasting operation." Tr. 117 .. Therefore, when asked who should make 

the decision to pull miners out of the blast area in order to "get away form a shot," Bellamy 

stated, "I think the blaster should. And I think it is state law." Tr. 117. 

State officials also investigated the accident, in part to determine the source of the 

flyrock. They concluded the rock originated in the right comer of the shot area, adjacent to a 

previously shot area. Joint Exh.1; Tr.147-148. Bellamytestified there are various causes for 

flyrock. It can be caused by joints in the rock which direct the rock to "blow out," weak areas in 

the rock strata, or by a misfired shot. Tr. 79-80. Bellamy cautioned, "[E]very shot ... is not 

going to go off exactly as ... intended." Tr. 79-80.6 

THE CITATIONS 

As a result of the investigation, Bellamy issued Citation No. 7416150 to the company. 

The citation alleged a violation of section 77 .1000, a mandatory standard, requiring an operator to 

"establish and follow a ground control plan for the safe 'Control of all highwalls." Under the 

5

Because of the injury, Bellamy could not interview Travis Tackett. Tr. 57. 

6

Bellamy did not find fault with the way Virginia Drilling laid out the shot on July 13. 

Tr. 168. The shot was set up to produce the result Central Appalachia wanted - i.e., to break 

''the rock up into sizes that can be handled by ... [Central Appalachia's] equipment in order to 

excavate ... and remove it." Tr. 77 

29 FMSHRC 433 
standard, the plan must also ''insure safe working conditions." 30 C.F.R. § 77.1000;- Gov't Exh. 

7; see Tr. 89-90. Bellamy believed Central Appalachia's established ground control plan did 

"not adequately provide precautions ... to prevent flyrockor to remove miners to a safe location 

prior to blast detonations." Gov't Exh. 7; see also Tr. 96. 

Bellamy explained, after the citation was issued, Central Appalachia supplemented its 

plan by requiring, among other things, the highwall mine foreman and production foreman to 

withdraw all miners in the affected blasting area to a safe distance. Tr. 100-101.7 The purpose of 

the supplement was to take "some of the guesswork" out of withdrawing miners from a blast area 

by outlining Central Appalachia's "responsibilities as far as making sure ... people are out ofthe 

way of the blast." Tr. 102. 

With regard to Central Appalachia's ground control plan, Bellamy noted section 77.1000 

requires the agency to "ackno~ledge" the plan, and he described the process MSHA follows. Tr. 

7

Four procedures were specified in the supplement: 

Gov't Exh. 9 at 3. 

1. A certified blaster will directly notify 

the Highwall Miner Foreman and 

Production Foreman of the impending 

blast. 

2. Upon receiving notification, the Highwall 

Miner Foreman and Production Foreman · 

will withdraw highwall miners and other · 

employees in the affected blasting area 

to a safe distance. 

3. The horn or siren used by the certified 

blaster shall be of a sufficient decibel 

level to be heard by employees in the 

affected blast area. 

4. The blast will not be detonated untilall 

employees within the affected blast area · 

have been withdrawn. 

Subsequent to the accident, items 3 and 4 were suggested to all surface operators in the 

district for inclusion in their ground control plans. Tr. 157; see also Tr. 217. fu addition, they 

were added to the ground control plan form MSHA makes available to operators. Tr. 104-105, 

155-156. 

29 FMSHRC 434 
29. The MSHA District Manager ''just acknowledges that the plan [isl submitted. [The plan h_as] 

... not really gone through a real thorough review or an onsite investigation." Tr. 30. IfMSHA 

believes things should be added or changed, MSHA representatives advise the operator and 

arrange a conference to discuss the matter. Tr. 152. 

fu Bellamy's opinion, the purpose of a ground control plan is to ensure the stability.of 

highwalls, spoil banks and pits and, thus, to ensure safe working conditions. See Tr:. 90. 

Therefore, he believed an adequate ground control plan should address "various aspects ... [of] 

highwall configuration" Tr. 93.8 · 

The plan in.effect at.the mine on July 13 was submitted to MSHA onlune2, 2005. It 

was acknowledged by.the MSHA District Manager on June 7. Tr. 153; Gov't Exh. 8. At the 

time, MSHA did not express any concerns. Tr. 153. Nevertheless, MSHA advised C~ntral 

Appalachia the plan was open to re-evaluation if experience established it was in any part 

inadequate or if conditions developed that were not addressed in the plan. Tr. 94-95. Bellamy 

identified a cover letter sent by MSHA District Manager Kenneth.Murrayto Cantrell. Gov't Exh. 

9, Tr. 95. The letter stated in part, "[T]his plan will be evaluated any time there is a question of 

the adequacy of the ... Ground Co:ntrol Plan." Gov't Exh. 8. 

Bellamy also issued Citation No. 7 416151 to the company for an alleged violation of 

section 77.1303(h). Gov't Exh. 6. Section 77.1303(h) requires: "All persons shall be cleared 

and removed from the blasting area unless suitable blasting shelters are provided to protect men 

endangered by concussion or flyrock from blasting." Bellamy believed this requifement was 

violated. He concluded the miners were in a blasting area because "of the orientation of the 

location of the employees relative to the shot." Tr. 64. They were "in the direction of the free 

face of the shot." Tr. 64.9 In Bellamy's opinion;, "anytime you're in front of that shot, in front of 

the free face of it, you're in the blast area." Tr. 64, see also Tr. 66, 81. Therefore, the miners 

should have been removed or been provided with shelters. 

Bellamy further maintained flyrock always has to be taken into consideration. He stated, 

"[J]ust because you didn't have flyrock on the previous.shot, that doesn't necessarily mean 

8

Although an operator is not required to use an MSHA-provided form for its plan, 

Bellamy testified the agency encourages them to do so. "It makes it easier for both the operators 

and for ... [MSHA] .... to have certain information ... [MSHA].,. want[s] ... in the plan." 

Tr. 97. Once in possession of the form, an operator can supplement it by including its "own 

sketches of [its] highwall and any particular thing ... [it] think[s] needs to go in the plan." Tr. 

97, 151. 

9 According to Bellamy, the "free face" was an "area that ha[ d] been already blasted in the 

past," an area where "the rock had already been removed." Tr. 68, 

29 FMSHRC 435 
you 're not going to have it on ... [the next] one." Tr. 81; see also Tr. 73. "Once you set a blast 

up ... [y]ou have to take all precautions to remove the people from the blast[ing] area/'. Tr. 65-

66. 

Bellamy could not say how far miners should withdraw to be outside the blasting area. 

He explained, "it's going to depend on a lot of different factors. The size of the shot, how much 

explosives are being used, how the shot's laid out, ... the type of rock that's being shot, [and] 

the hardness[of the rock]." Tr. 66-67, 117. 

Section 77.1303(h) also requires an "[a]mple warning ... be given before blasts are 

fired." Bellamy believed the requirement was violated because although warning signals were 

sounded/they were not heard by the crew in the pit; nor was the crew warned of .the shot by the 

foreman. Tr. 55, 63. 

Bellamy issued the citation to Central Appalachia because Nichols, who failed to 

effectively warn the miners, acted for the company. As the foreman, he was responsible for the 

safety of those working under him. Tr. 83. In Bellamy's opinion, Nichols should have removed 

the employees from the blasting area or given them warning of the shot so they could take cover. 

Tr. 83. Nichols was wrong to rely on Stewart. Tr. 85-86. Nichols should not have taken the 

chance he and those under his supervision would be safe. Rather, he should have said to Stewart, 

"we're getting out of here." Tr. 87. Leaving himself and his miners positioned in front of the 

shot ''was a dangerous place to be." Tr. 88. 

THE VIOLATIONS 

CITATION NO. 7416150 

Citation No. 7416150 states: 

The ground control plan established by the 

operator does not insure safe working conditions. 

On July 13, 2005, a non-fatal accident occurred 

when an employee of the highwall miner crew 

was struck by flyrock from a nearby blast detonation. The ground control plan does not adequately 

provide precautions to be taken by the operator to 

prevent flyrock or to remove miners to a safe 

location prior to blast detonations. 

Gov't Exh. 7, 

As previously noted, section 77 .1000 in part requires each operator to: 

29 FMSHRC 436 
[E]stablish and follow a ground control plan for 

the safe control of all hjghwalls, pits and·spoil 

bank:s .... which shall be consistent with prudent 

engin.~ering design and will insure safe. working 

conditions. 

The Secretary asserts section 77.1000 places a ground control plan "under the specific 

control of the operator.". Sec .• Br. 8. fu the Secretary's view, "The fact Nichols felt •.. it was not 

his responsibility to assure th~ safety of his crew ... demonstrates ... the ... plan wru; 

inadequate to assure the safety of the highwall crew." Sec. Br. 8 . 

. Central Appalachia responds it did not violate any provisions of the plan in effect on July 

13. To draft the plan, the company used forms provided by MSHA, and there was notltj.ng on the 

forms requiring information regarding the control of flyrock. The company notes that prior to the 

accident the agency never raised concerns regarding blasting security in the context of the 

company's ground control plan. Cent. Ap. Br. 7. Central Appalachia also states it knows of no 

other instance in which an operator has been cited for failing to have an adequate plan after its 

plan was "acknowledged;' byMSHA. Cent. Ap. Br. 12. Moreover, it argues section 77.1000 

does not address blasting procedures but rather focuses on the "safe control of all highwalls, pits . . . . 

and spoil banks." Cent. Ap. Br. 12 (quoting section 77.1000). In Central Appalachia's view; . . . . . . 

section 77.1000 "is simply inapplicable to the acts MSHA alleges have been committed." Cent. 

Ap. Br. 13. It is the Secretary, notthe operator, who ''ultimately bears responsibility.for a mine 

plan's silence ... . "Id. 13 ... 

I am not persuaded by the, company's arguments. As I read the standard, among its 

requirements is the provision all surface coal mine operators, of whom Central Appalachia is 

one, submit a ground control plan ''which ... will insure safe working conditions'." The 

requirement to "insure safe working conditions" is a mandate over and above the particular 

requirements contained in the plan itself, which means although an operator may comply with all 

parts of its submitted and acknowledged plan, it may stillbe in violation ofthe standard ifthe 

plan does not provide a safe workplace. While it is true the Secretary must acknowledge the 

plan, it is the operator first and foremost who must make certam the plan "insure[ s] safe working 

conditions/' and if the plan does not, the operator-violates the standard. 

It is clear Central Appalachia's plan did not "insure safe working conditions," because it 

did not require miners in the blasting area to be removed to a safe location or to be provided with 

shelter prior to the shot. As the testimony establishes, on July 13 those working in the pit had no 

knowledge the shot was about to be fired. As a result, they scrambled for cover as flyrock flew 

toward thelll. With no provision to.insure the miners were out of the affected area or were 

otherwise out of the way of possible flyrockprior to the shot's detonation, safe working 

conditions were not insured, the plan was defective and section 77 .1000 was violated. 

29 FMSHRC 437 
I have no doubt it is exasperating for an operatot to sublirit a ground control plan by 

essentially completing a fonn provided by MSHA, to have the plan· acknowledged by the MSHA 

district manager, and then to learn, based on a subsequent event, the acknowledged plan does not 

meet the requirements of the standard~ However, the scenario does not contravene the Act. The 

burden of compliance is the operator's, not, as counsel for the company incorrectly implies 

(Cent. Ap. Br. 15), the Secretary's. Moreover, it is far from unusual for a post-event 

investigation to result in the issuance of a citation for something neither the operator nor the 

agency contemplated .. Just as post-event revelations inform our everyday lives, so knowledge 

growing outof an investigation informs the agency's ongoing enforcement activities. This 

stated, the fact neither party anticipated the company's section 77.1000 compliance 

responsibilities revealed as necessary by the accident is not without a consequence, for while the 

lack of foresight does not excuse the violation, it impacts the negligence attributable to Central 

Appalachia. 

S&S AND GRAVITY 

An S&S violation is a violation "of such nature as could significantly and substantially 

contribute to the cause and effect ofa ... mine safety or health hazard." 30 U.S.C. § 814(d). A 

violation is properly designated S&S, "if; based upon the particular facts surrounding that.· 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Div., Nat 'l Gypsum Co., 3 FMSHR.C · 

822, 825 (April 1981 ). To establish the S&S nature of a violation, the Secretary must prove: (1) 

the underlying violation; (2) a discrete safety hazard - that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable likelihood the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood the injury will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek Coal Co., Inc. 52 F. 3d 

133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 81F.2d 99,103 (5th Cir. 

1988) (approving Mathies criteria); 

It is the third element of the S&S ·criteria that is the source of most controversies · 

regarding S&S findings. The element is established only if the Secretary proves "a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel 

Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must 

be based on the particular facts surrounding the violation and must be made in the context of 

continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (August 1985); U.S. 

Steel, 7 FMSHRC at 1130. 

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous. 

The Commission has pointed out that the "focus ofthe seriousness ofthe violation is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the· S&S inquiry, 

but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHR.C 1541, 

1550 (September 1996). 

29 FMSHR.C 438 
Given my conclusion the Secretary established a vi.olation of section 77.1000, the first of 

the Nat'/ Gypsum factors has been met. Nex.t is the. question of whether the record supports 

finding the failure to ensure miners were out of the affected, :area ()r were otherwise out of the 

way of flyrock prior to the detonation of a shot posed a discrete safety hazard ... There is no doubt 

it did. The hazard was the subjection of the miners to possible injury from flyrock. In other 

words, the hazard was exactly what happened. Moreover, as the July13 incident showed, the 

failure to ensure the miners were removed or otherwise protected prior to detonation was . . 

reasonably likely to result in a serious, if not a fatal, injury .. 9nce flyrock was set in motion, 

miners in the affected area had but seconds to react and protect themselves as.best they could. 

Given the amount of flyrock that could be produced, the short time miners had to react and the 

limited areas within which they could take cover, I conclude there was a reasonable likelihood 

failure to ensure miners were out of the area before the detonation or were otherwise protected 

would result in an injury or injuries of a reasonably serious nature. Indeed, in the instance at 

hand, Travis Tackett was lucky he was not killed. For these reasons, I find the violation was 

S&S. 

I also find the violation was serious. The effect o_f the failure to en,sure the miners were 

removed from the affected-area or were otherwise protected prior to the detonation was the direct 

result of Travis Tackett's injury, and others in the affected area of the pitwere fortunate to escape 

his fate. 

NEGLIGENCE 

Inspector Bellamy found the violation was due to Central Appalachia's "moderate" 

negligence. Gov't Exh. 7. I conclude, however, the company's negligence was low. While it is 

true the gravity of the likely injuries caused by flyrock warranted preventative vigilance on the 

company's part, a finding of negligence must take into consideration all of the circumstances 

surrounding the violation. Those circumstances include the fact Central Appalachia reasonably 

believed the care it exercised met the circumstances it faced. 

First, Central Appalachia believed its ground control plan, as .~knowledged my MSHA, 

was adequate. The agency provided Central Appala~hia with the MSHA"."made form for its plan 

and, once the plan was submitted, the agency acknowledged without comment the plan's receipt. 

In addition, as Bellamy admitted, prior to July 13, MSHA did not require anything dealing with 

flyrock to be included in an operator's ground control plan. Only after the accident did MSHA 

require provisions ensuring miners hear warning signals and be ~emoyed from a blast site before 

a detonation. Tr. 98-99. All of these things gave the plan. as submitted and acknowledged 

MSHA' s imprimatur and lead to the company's .good fajth, reasonable belief it was in 

compliance. . . . . . 

Second, MSHA did not dispute the testimony of Cantrell regfil.ding the services provided 

the company by its contractor, Virginia Drilling (Tr. 202-204). It is clear from the testimony 

Virginia Drilling was completely in charge of the blasting operation. Tr. 203. The contractor 

29 FMSHRC 439 
provided everything with regard to explosives. It also is clear prior to the accident MSHA 

understood Virginia Drilling's role at the mine, including the contractor's determination of the 

blasting area and its sounding of the siren prior to detonation; Despite this knowledge, and its 

knowlege of the contents of the plan, MSHA did not express a single safety concern to Central 

Appalachia. See Tr. 215. 

Given the lack of concern by MSHA prior to the accident and the reasonable reliance by 

Central Appalachia on its plan as acknowledged and on Virginia Drilling, I find the company's 

lack of care is greatly mitigated. 

CITATION NO. 7416151 

Citation No. 7416151 states: 

An ample warning was not given to the miners 

working on the highwall miner crew in the ... 

pit on July 13; 2005, on the second shift 

prior to a blast detOnation which produced flyrock 

that caused an injury to a miner. The miners 

were not removed from the affected area and a 

warning signal which was audible to the highwall miner crew was not given. 

Gov't Exh. 6. 

Section 77.1303(h) requires: 

Ample warning [shall be] given before blasts 

are fired. All persons shall be cleared and 

removed from the blasting area unless suitable blasting shelters are provided to protect 

·men.endangered by concussion orflyrock 

from blasting. 

The Secretary argues the standard should be interpreted from the standpoint of "a 

reasonable person with knowledge of the particulars of the shot." Sec. Br. 9. She states a 

reasonable person in Nichols' position would have "consider[ edJ all possible consequences and 

outcomes including where flyrock mightland diiring ... [the] blast." Id. 10. She argues Nichols 

failed to consider whether flyrock might occur and where the affected area would be if it 

occurred. Based on what actually happened, the Secretary finds it "clear" Nichols did not act 

reasonably. Id. 

29 FMSHRC 440 
The Secretary also observes Nichols was unaware.crew members did not know when the 

explosion would occur. This, too, was not in keeping with the ."reasonable person" standard. 

Sec. Br. 10. The Secretary sums up: 

Tr. 11. 

A reasonable surface forem~ ... :would 

have known first that there are sign~s which 

are required to be sounded to assure that_ 

persons in the blast area know about a 

forthcoming blast and &econd that miners 

working in the zone where flyrock could 

occur should be given that warning or removed from the danger zone. Nichols did 

neither of these things. 

Central Appalachia concentrates its argument on the definition of "blasting area."10 The 

company points to the Commission's holding in Hohet Mining and Construction Company: 

To establish a violation of ... [section 

77.1303(h)], based on a failure to.clear and .. · 

remove all persons from the blasting area, 

the Secretary must prove that an operator 

has failed to clear and remove all persons .. 

from the "blasting area," as that term is de-. 

fined in section 77.2(f). This requires the 

Secretary to establish the factors that a 

reasonably prudent person familiar with. 

mine blasting and the protective purposes 

of the standard would have c()nsidered in 

a determination under all of the circumstances posed by the blast in issue. The 

.Secretary must prove that the factors were 

not properly considered or employed. 

9 FMSHRC 200, 202(Fel>ruary1987) (citations omitted). 

10"Blasting area" is defincxt in section 30 C.F .R. § 77.2(f) as, ''the area near blasting 

operations in which concussion or flying material can reasonably be expected to cause injury." 

30 C.F.R. § 77.2(f). 

29 FMSHRC 441 
Under this holding, the company argues a "blasting area" can be based on several factors 

including: the results of prior shots, the amount and type of explosives used, the depth of holes 

constituting the shot, and the topography. Cent. Ap. Br. 16-17. Virginia Drilling's blasters 

determined the affected miners were not in a blast area based on the fact two prior shots had been 

detonated closer to the highwall miner pit without ii:tcident and rubble from the prior shots 

created a buffer between the shot and the crew. Id. 17. Thus, according to Central Appalachia, 

the decision of the blasters as to what constituted the blasting area was reasonable. 

The company also argues the Secretary did not establish the lack of an "ample warning" 

to the affected miners. In the company's view, since there is no regulatory definition of "ample 

warning," the term must be defined in the context of the facts of the case. Central Appalachia 

notes the blaster sounded two siren warnings before the blast, in accordance with state law. In 

addition, Stewart told Nichols the shot would be fired and Nichols, in tum, told his crew. It is 

Central Appalachia's contention the siren's soundings and the oral warning taken together 

constitute an "ample warning" and come within the meaning of the standard. Cent. Ap. Br. 18. 

The Blastine Area 

The citation charges the July 13 detonation produced flyrock and "miners were not 

removed from the affected area." Gov't Exh. 6. The company does not dispute the allegations. 

It also agrees blasting shelters were not provided for the miners. The unresolved question is 

whether the miners were in a "blasting area." 

The Secretary bears the burderi of proof when alleging a violation. As the Commission 

has pointed out and as Central Appalachia has noted, when the Secretary charges miners were not 

removed from a "blasting area," she must establish what reasonably could have been expected to 

constitute the area. Hobet Mining, 9 FMSHRC 200, 202 (February 1987). It is not enough to 

reply on the fact flyrock landed in the area, 9 FMSHRC at 202-203. Rather, the Secretary must 

consider "the results of prior shots ... [and] a number of variables .... inelud[ing], but ... not 

limited to, the amount and type of explosive used, the depth of the hole that constitute the shot, 

the topography, and the expertise of the blaster." 9 FMSRHC at 202-203. 

Although inspector Bellamy testified the blasting area has to be "defined for each 

individual shot," and a determination as to what constitutes· a blasting area has to be "based on a 

lot of different factors" (Tr. 80), such as "[t]he size of the shot, how much explosives are being 

used, how the shot's laid out, ... the type of rock that's being shot, [and] the hardness [of the 

rock]" (Tr. 66-67, see also Tr. 117), the Secretary presented no cogent testimony linking such 

factors to what reasonably could have been expected to occur on July 13. For example, Bellamy 

noted 48,000 pounds of AN-FO were used in the shot (Tr. 52), but there was no follow-up 

testimony as to what this might (or might not) signify. Bellamy also testified he did not conduct 

a complete investigation of how the holes containing the explosives were arranged; nor did he 

thoroughly investigate other details of the shot. Tr. 168. fu addition, there was no testimony 

regarding the specific topography of the shot area and its impact, if any, on a reasonable 

29 FMSHRC 442 
determina,tion of the extent of the blasting area, except for Bellamy's agreement that material 

fromtwo prior shots had piled between the affected miners aμdthe site of the detonation. Tr ... · 

127, 130.11 Moreover, the Secretary did not subpoena the blasters, so there was no direct 

testimony from those who knew best about how the. blasting-area was determineci. 

Rather than provide evidence regarding the variables the _Commission stated go into the 

making of a blasting area determination, the main thrustofthe Secretary's testimony centered on 

Bellamy's assertion the location of the affected employees in front of the. free face virtually 

guaranteed they were in the blasting area. See, e.g., Tr. 64 (miners were in the blasting area 

"because of the orientation of$e location of the employee~relative to the shot"); See also Tr. 64 

(miners working in front of a free face are in the blast area); and see Tr. 81 (flyrock can occur 

"on any shot;'' and miners should not "work in :front of [a] shot.'') It may be that considering an 

area in front of a shot. to be the sole or nearly sole determinant of a "blasting area" is a perfectly·.·. 

reasonable way to construe the standard. However, without more testimony regarding why that 

determinant should override other potential determinants and why the determinant makes the 

others irrelevant, there is an insufficient evidentiary basis to conclude all persons were not 

"cleared and removed from the blasting area" as requiredby section 77.1303(h). 

Ample Warnine 

The question remains whether an "ample warning [was] ... given before [the blast] was 

fired.'' The citation charges it was not, because there was no ''warning signal which was audible, 

to the highwaJl miner crew," Gov'tExh; 6. I agree. Although "ample" is p.ot defined in the 

regulations or the.Act, its meaning is. commonly under&tood to connote something that is 

"marked by extensive or more than adequate size, volum,e,: space or room." Webster's Third New 

International Dictionary (1993) 74. fu the context of the regulation, the warning signal must be 

"more than adequate," which, among other things, means it must be heard. Here, there is no 

dispute the signals given on July 13 - the sirens and Nichols' .vocal message to the miners - were 

not heard by the miners. Tr. 55, 59, 63, 122, 192. Therefore, the warning signals were not 

"ample," and Central Appalachia violated this part of the regulation. 1

•

2 

S&S AND GRAVITY 

I have found the failure to provide the miners in the pit a warning they could hear prior to 

detonation of the shot was a violation of section 77.1303(h). I also find the violation created a 

11The·presence of the material, if anything, supports Central Appalachia's contention 

Virginia Drilling's blasters acted reasonably, as do the facts on two prior shots no flyrock was 

produced (Tr. 53) and the shot resulting in the accident was farther away from the affected 

miners than the twq prior shots, Tr.190. 

121 recognize this is a simple analysis, but it is all.that is required for the "ample warning" 

allegation. 

29 FMSHRC 443 
discrete safety haiard in that the miners were not given notice of the detonation and, therefore, 

could not take precautions to protect themselves from the shot's possible consequences. This 

subjected the miners to the hazard of being unable to react fast enough to avoid flyrock by 

leaving the affected area or by talcing covei prior to the shot. Lack of notice of the shot also 

made it reasonably likely miners would be injured because it drastically reduced the time they 

had to protect themselves from the effects of the blast. Finally, as the injury to Travis· Tackett 

showed; there was a reasonable likelihood injuries caused by the violation would be of a 

reasonably serious nature. 

In addition to being a significant and substantial contribution to a mine safety hazard, I 

find the violation was serious. The effect of the failure to provide an ample warning to the 

miners left Travis Tackett and the others to scramble for cover as the flyrock flew toward them. 

Broken bones and abrasions are the least that reasonably could have been expected. 

NEGLIGENCE 

Bellamy believed the company was moderatelynegligent. Gov't Exh. 6. I find, 

however, its negligence was high. Nichols was the foreman. He acted on Central Appalachia's 

behalf. He was responsible for the safety of those he supervised. He was on site. He was aware 

of the noise produced by the highwall miner and by other equipment in the pit. Nichols did not 

hear the five-minute and one-minute sirens. Tr. 195. Nichols admitted, because of the pit noise, 

it was not unusual to be unable to hear such warnings. Tr. 196. Nonetheless, Nichols knew a 

shot was coming because the blaster told him. Tr~ 190. Nichols was under· an obligation to make 

sure those working under his supervision knew as well. It was not enough for Nichols to "tell" 

the miners if they could not hear him, aiidin view of his knowledge noise in the pit often covered 

other sounds, he was obligated to ensure his words were heard and understood. The potential 

deadly hazard faced by those he supervised required he meet a high standard of care. It was an 

obligation he and, thus, the company, failed to meet. · 

REMAINING CIVIL PENALTY.CRITERIA 

IDSTORY OF PREVIOUS VIOLATIONS 

The Secretary entered into evidence, over the objection of counsel for the company, a 

computer printout titled "Assessed Violation History Report." Gov't Exh. 10. The printout lists 

a total of 16 prior violations at the mine in the two years preceding the accident. Gov't Exh. 10 

at 19-20. It also lists more than 300 other violations that occurred at other mines operated by 

companies controlled by Wexford Capitol, LLC, Central Appalachia's controlling entity. In 

objecting to the report,- counsel for Central Appalachia pointed out the exhibit lists mines from 

around the country, that some of the listed violations predated the existence of Central 

Appalachia, and that one of the companies whose violations are included, CAM Mining, LLC, is 

an entirely different entity than Central Appalachia. Tr. 109-113. I admitted the exhibit subject 

to its being explained and subject to its consideration being argued on brief. 

29 FMSHRC 444 
Counsel for the Secretary has not disc_ussed the exhibit or the issue of its consideration. 

Counsel for Central Appalachia has renewed his objections to the .exhibit and stated his belief 

"all penalties should be calculated on the history of any previous violations at Hunts Branch 

[Freeburn Mine] only." Cent. Ap. Br. 11n.2. 

Without further explication from the Secretary, and noting that .botJi the printout and 

Exhibit A of the Secretary's petition indicate the mine has a small history of previous violation&,. 

I find, based on the record in this case, the applicable history of previous violations is small. The 

finding is made on these specific circumstances and is not a global pronouncement as to what 

constitutes an appropriate history of previous violations. 

In proposing penalties for the alleged violations, the Secretary noted Central Appalachia 

was of medium size. Petition for Assessment of Penalty, Exh. A. There being no evidence to the 

contrary, I find this is in fact the case. 

ABILITY TO CONTINUE IN BUSINESS 

There is no evidence the size of any penalties assessed will adversely affect Central 

Appalachia's ability to continue in business, and I find they will not. 

GOOD FAITH ABATEMENT 

The violations were abated in good faith by Central Appalachia and in a timely fashion. 

Gov't Exh. 6, Gov't Exh. 7. 

Citation No. 

7416150 

CIVIL PENALTY ASSESSMENTS 

Date 

7114105 

30 C.F.R. § 

77.1000 

Proposed Assessment 

$5,000 

I have found the violation was serious. I also have found that the company's negligence 

was low and much of its lack of care was excusable. Given these findings and the other civil 

penalty criteria, I conclude a penalty significantly reduced from that which is proposed is 

warranted. I find an assessment of $2,000 is appropriate. 

Citation No. 

7416151 

Date 

7/14/05 

30 C.F.R. § 

77.1303(h) 

Proposed Assessment 

$228 

I have found the part of the alleged violation that was proven was serious. I also have 

found the company's negligence was high. Given these findings and the other civil penalty 

29 FMSHRC 445 
criteria, I find a penalty significantly higher than that which is proposed is warranted. I conclude 

an assessment of $500 is appropriate. 

ORDER 

Central Appalachia SHALL pay total civil penalties of $2,500 within 40 days of the date 

of this decision, and upon payment of the ·penalties this proceeding IS DISMISSED. 

Distribution: (Certified Mail) 

J)w/df&~ David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, 1N 37219-2456 

Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Spilman Center, 300 Kanawha Blvd., 

East, P.O. Box 273, Charleston, WV 25321 

/ej 

29 FMSHRC 446 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, oc 20001-2021 

June 1, 2007 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), .· 

Petitioner 

V. 

L. C. CURTIS & SON, INC., 

Respondent 

DECISION 

Docket No. SE 2007-103-M 

A. C~ No. 09-00282-102409 

Watkinsville Mine 

Appearances: Heather A. ,loys, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta, 

Georgia, and Terry G. Lingenfelter, Conference and Litigation Representative,· 

Before: 

. Mine Safety and Health Administration, U.S. Department of Labor, Birmingham, 

Alabama, for Petitioner; . · 

John L Curtis, Vice President, L. C. Curtis & Son, Inc., Watkinsville? Georgia, 

Pro Se, for Respondent. 

Judge Hodgdon 

This case is before me on a Petition for Assessment of Civil Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against 

L. C. Curtis & Son, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977, as amended, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's mandatory 

health and safety standards and seeks a penalty of $60.00. A hearing was held in Athens, 

Georgia. For the reasons set forth below, I vacate the citation: 

Backeround. 

L. C. Curtis & Son, Inc., operates the Watkinsville Mine in Watkinsville, Georgia. The 

mine is a small sand operation. Sand is sucked from a pond by a dredge, pumped to a station 

where it is washed and then is stockpiled until it is sold to custoiners. The mine ha8 three · 

employees, a dredge operatOr, a loader operator and Alex Curtis, son of John L..Curtis. 

On September 17, 2006, MSHA Inspector Gerald ·smith, went to the mine to perform the 

regular semi-annual inspection. During the inspection, he issued Citation No. 7773909 under 

section 104(a) of the Act, 30 U.S.C. § 814(a), which is the subject of this proceeding. 

29 FMSHRC 447 
Findinz=s of Fact and Conclusions of Law 

The citation alleges a violation of section 56.14107(a) of the Secretary's regulations, 30 

C.F.R. § 56.14107(a). The "Condition or Practice" alleged to result in this violation was stated 

to be: 

The coupling and keyed shaft for the packing water pump 

were not properly guarded to prevent contact with the coupling and 

keyed shaft. A grease fitting was located within 4 inches of the 

coupling. Persons exposed to this condition could injure fingers 

and hand if contacted. 

Section 56.14107(a) requires that: "Moving machine parts shall be guarded to protect persons 

from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury." 

Inspector Smith testified that he observed a pump that was ''partially guarded." (Tr. 14.) 

In fact, the pump was guarded across the top, down the side and across the front a.S far down as 

where the shaft entered the pump. (Govt. Ex. 2.) The shaft was behind the guru.d. The Inspector 

said that he wrote the citation because the shaft was not completely guarded and a miner could 

come in contact with the shaft while greasing the pump. (Tr. 18.) He also said, when pressed by 

his representative, that a miner might go to the pump "to see ifit's running, to prime the pump" 

or "doing a workplace exam." (Tr. 18.) He admitted on cross examination, however, that "if 

there were no [grease] fitting there, I don't believe there would be exposure." (Tr. 29.) 

The company presented evidence that the pump is greased four times a year and the entire 

plant is shut down on those maintenance days. (Tr.· 48, 53.) Furthermore, the inspector verified 

that in the normal course of business, greasing is not performed while machinery is operating. 

(Tr. 40.) 

Jn addition, the operator asserted that the pump had been inspected for over sixteen years 

and not been cited. (Tr. 8.) Inspector.Smith confirmed that in his review of the previous 

inspections of the mine, made before conducting his inspection, there had been no citation of the 

pump for a guarding violation. (Tr. 37-38.) 

The chances of a miner inadvertently coming in contact with the spinning shaft, while ~ot 

impossible, were extremely unlikely. There is no evidence that the company greased the pump 

while it was operating. There were only three miners m the entire operation, so the chances of 

one of them checking the pump, doing a workplace inspection, or just walking by, falling and 

getting his hand under the guard and coming in contact with the shaft or coupling were remote at 

best. 

29 FMSHRC 448 
Moreover, ·even if it is assumed that the shaft was not adequately guarded, the operator 

did not have notice that it was not properly guarded. The Commission has held, with regard to 

notice, that in determining whether a broadly worded standard that is intended to be applied to 

many factual situations, applies to a specific situation, "it is appropriate te>,evaluate the evidence 

in light of what a 'reasonably prudent person, familiar with the mining industry and the · 

protective purpose of the standard, would have provided in order to meet the protection intended 

by the standard."' Ideal Cement Co., 1.2 FMSHRC 2409, 2415 (Nov. 1990) (citations omitted). 

Applying this standard to the factsjn:this case, it is apparent that a reasonably prudent person 

would not have done anything differently than this operator. 

The Secretary argued that the fact that other pumps on the property were properly guarded 

shows that the operator, as a reasonably prudent person, should have known that the pump in 

question was not suitably guarded. (Tr. 59.) To the contrary, this evidence leads to an opposite 

conclusion. 

The pumps which the inspector found to be properly guarded demonstrate that the 

operator was aware of the requirements of the regulation. 1 As does the fact that this mine has 

had very few violations. It had been cited once in the previous two years, only four times since 

the company had been in business, and never for guarding violations. (Ir.5-6, 37-38.) 

The pump in question was guarded. It had been inspected numerous times in the past and 

not been cited. Thus, the operator, a person familiar with the mining industry and the protective 

purpose of the standard, had guarded the pump in a manner that he deemed appropriate and had .·· 

never been informed that there was anything wrong with it. Consequently, until the operator was 

advised by a new inspector that he believed additional guarding was needed, there was no way 

that the operator knew, or should have known, that his guarding was inadequate. 

In summary, if there was a violation in this case, it was a violation in only the most 

technical sense. However, even ifthere were a violation, the operator did not have adequate 

notice that it was a violation. Accordingly, the citation will be vacated. Nonetheless, whether 

there was a violation or not, the bottom line is that the safety of miners has been enhanced 

because the pump is now guarded in a manner satisfactory to both MSHA and the operator. 

1 In addition, there is evidence that these pumps were belt driven, rather than shaft driven, 

and, thus, different than the pump at issue. (Tr. 26-27.) Consequently, the type of guarding 

required was also different. 

29 F.MSHRC 449 
Order 

In view of the above, it is ORDERED that Citation No. 7773909 ·is VACATED and that 

this case is DISMISSED. 

0?..:kV~ T. Todd Hodgdon · 

Administrative Law Judge 

Distribution: 

Heather A. Joys, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., 

Room 7Tl 0, Atlanta, GA 30303 

Terry G. Lingenfelter, Conference and Litigation Representative, 135 Gemini Circle, Suite 212, 

Birmingham, AL 35209 

J.L. Curtis, Vice President, L. C. Curtis & Son, Inc., P.O. Box 123, Watkinsville; GA 30677 

/sr 

29 FMSHRC 450 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. Petitioner 

v. 

Washington, DC 20001-2021 

June 4, 2007 

CIVILPENALTY PROCEEDING 

Docket No. WEV A 2005-82 

A.C. No. 46-08402-49118 

ELK RUN COAL COMP ANY, INC., 

Respondent. · Black Knight Il 

DECISION 

Appearances: Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, W~hington,D.C., 

Counsel for Respondent; 

J. Matthew McCraken, Esq., U.S. Department of Labor, Office of the Solicitor, 

West, Arlington, Virginia, Counsel for the Petitioner 

Before: Judge Weisberger 

I. Statement of the Case 

This case is l:>efore me based on a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor ("Secretary) alleging. violations by Elk Run Coal Company ("Elk Run") of 30 

C.F.R. §§ 77.501, 77.704-l(a), and 77.1710(c) respectively. Subsequent to notice, the case was 

heard in Charleston, West Virginia on December 12,2006. 

II. Introduction 

Elk Run operates the Black Knight IT Coal Mine. A belt line transports coal from 

underground to a silo on the surface. A high voltage line attached to various poles supplies 

electricity to operate the belt motors. Two sets of transformers on the poles convert the 

electricity down to 480 volts. Three disconnects are located under the transformers. In normal 

operations, the disconnects are closed creating a circuit and allowing electricity to flow in a three 

phase lead that runs from the transformers to four cabinets or compartments. ("Motor Control 

Center") Three phases enter Compartment No. 1 (Gx. 22) at the top of the cabinet. 

Each compartment contains a set of three fuses and disconnects. The cabinets are covered 

by an outer door and a metal grate. When the outer door is removed, it is possible to access a 

handle to open a disconnect switch, breaking contact to the fuses inside the box, and removing 

power to wires and components downstream from that point. Three phases leave the 

compartments and lead to various motors including the belt motors. 

29 FMSHRC 451 
On the midnight shift of May 19, 2004, Ricky Bryson noticed a spillage in the area of the 

silo where it dumped coal on the belt, and heard a sound in one of the motors which indicated to 

him that only one phase was in operation. The belt stopped and Bryson made various attempts to 

restart it, but was unable to do so. At approximately 5:30 a.m., Bryson informed the mine 

foreman, Charles Roach that he was unable to get the belt system to run. Roach, in tum 

contacted two electricians on the next shift, Michael Wayne Clay and Darrell Shivley.1 Shivley 

and Clay inspected the belt motor, and concluded that either the motor was defective, or there 

was a problem with a fuse. They were unable to further test the grounding at the motor because 

of excessive tape. Shivley traced the leads coming into Compartment No. l, and since they 

looked like the same size as wiring to the motor junction box, he concluded that these were the 

motor leads. They then went to the Motor Control Center, removed the outer door to the cabinet 

compartment at issue, turned the disconnect switch to open, and visually confirmed it was open. 

Shivley and Clay next took off the grating, and removed two fuses. 2 Shivley tested the fuses, and 

one of the fuses indicated that" ... it was blown." (Tr. 148). Shivley brought the fuse to Roach 

and suggested that the latter contact Ron Plumley, maintenance chief or Nicholas Thompson, 

line-crew foreman to locate another fuse. Roach was able to contact the latter but not the former. 

When Thompson arrived, Roach showed him the fuse, and Thompson indicated that he did not 

have a replacement. 

Shivley and Clay went back to the cabinet, and attempted to test the grounding in the 

lower portion of the cabinet. Shivley placed one end of a lead- meter on a copper bar, to which 

one of the phases was attached, (Gx. 16, 17), and attempted to attach the otherleadto a 

grounding bar at the bottom of the cabinet. Neither Shivley nor Clay wore any protective gloves 

when they performed this task. A loud explosion was heard and the meter exploded. Shivley 

was observed being knocked down, and he suffered a loss of hearing. 

Later that day, Marcus Smith, an MSHA electrical engineer for 18 years, and·a specialist 

accident investigator for the last two years, arrived on the site to investigate the accident. He 

interviewed Thompson, Clay, and Roach, and spoke with Shivley over the telephone. Based on 

his investigation, Smith issued Elk Run a Section 104( d)(l) Citation (No. 7224658) alleging a 

violation of Section 77.704-l(a), and two Section 104(d)(l) orders, (No.'s 7224659 and 

7224660) alleging, respectively, violations of30 CFR §§ 77.501, supra; and 77.l 710(c), supra. 

1 The parties stipulated that Clay and Shivley were non-supervisory employees of Elk 

Run, and were not the latter's agents. 

2

The third fuse normally located in that area had been removed, and was by-passed by a 

wire. 

29 FMSHRC 452 
III. Violations 

A. Citation No. 7224658 (Secti«m 77.704-l(a)), supra. 

Section 77.704-l(a), supra, provide~ as pertinent as follows: 

No high-voltage line shall be regarded as deenergized for the 

purpose of performing \VOrk on it, until it .has been determined by a 

qualified person (as pro\Tidedin § 77.103) that such high-voltage 

line has been deenergized and grounded. Such qualified person 

shall by visual observation (1) determine that the disconnecting 

devices on the high-voltage circuit are in open position, and (4) . 

insure that each ungrounded conductor of the high-voltage circuit 

upon which work is to be done is properly connected to the system . . . . . ' . . 

grounding medium .... 

.. ' ... ' .·· : 

Thus, according to Section 77. 704-1 (a), supra, m order for work to be performed on high 

voltage lines, a qualified person ml1st determine by yisual observation that the disconnecting 

devices on the circuit are in the :open position. 

It was stipulated by the parties that both Shivley and Glay were qualifi~d persons. as · 

provided in Sections 30 CFR § 77.103. They visually obserV"ed that the disconnecting devices 

inside the cabinet box were open, which would have broken.th~·circuit d()wnstream from that 

point. However, the cabinet was not deenergized inasmuch as the discoriilect at the transformer 

on the power pole was still closed, allowing power to flow from the transformer to a point 

upstream from the disconnect device inside the cabinet. Accordingly, I find that it has been 

established that Elk Run was notin compliance with Secti9n77.704-l(a), supra. 

B. Order No. 7224659 (Section 77.501, supra) 

1. Order No. 7224659 as duplicative of Order No. 7224658 

Elk Run argues that Order Nos. 7224659 (Section}? .501 ), and 7224658 (Section 77. 704-

1 (a), supra, are duplicative, asthe standards cited in the or4ers impose the same o.bligation. 

Section 77.704-l(a)), supra, in essence, requires thata qualified person determine that highvoltage lines be deenergized and grounded before work is performed on them. Section 501, 

supra, provides that "disconnecting devices [shall] be locked out and [suitably] tagged out by the 

[persons who perform] such work .... " Elk Run asserts that" .. .locking ()utjmplies and 

necessarily requires a deenergization of a circuit." (Elk R~'s Proposed Finding of Fact and· 

Conclusions of Law, p. 33). ("Findings of Fact") Elk Run argues that an operator who fails to 

deenergize as required by Section 77.704-l(a), supra, will thus be in violation ofboth standards, 

since their duties are not separate and distinct. 

29 FMSHRC 453 
However, a reading of the plain, unambiguous language of both sections reveals that 

separate and distinct duties are required. 30 CFR § 77.704, supra, requires that all high-voltage 

lines shall be deenergized before work is perfonried on them. Section 77.704-l(a), supra, 

provides that a high-voltage line shall not be regarded as deenergized until a qualified person 

makes this determination based on visual observation " ... that the disconnecting devices on the 

high-voltage circuit are in the open position ... " 

Thus, Section 77.704, supra, imposes a duty to deenergize. Section 77.704-l(a), supra, 

provides that in order for a line to be deenergized a duty is imposed on a qualified person (1) to 

determine (2) by observation that (3) the disconnecting devices on the high-voltage line "are in 

the open position ... ", thus imposing a duty to open these devices prior to the performance of 

work. In contrast, Section 77.501, supra, requires that disconnecting device·s be (1) locked out, 

and (2) suitably tagged by a qualified person. Thus, the two ·standards impose separate duty 

requirements and are not duplicative (See, Tonopah Mining Corp., 15 FMSHRC 367, 378 

(1993). See also, Blue Diamond Coal Co., 25 FMSHRC 570, 583 (2004) (ALJ). 

2. Violation of Section 77.501, supra 

There is not·anyevidence that, prior to their commencement of the work in the cabinet at 

issue, Shivley or Clay locked and tagged the relevant disconnecting device that was located 

below a set of transformers on the power pole. Accordingly, I find that Elk Run was not in 

compliance with Section 77'.501, supra. 

C. Order No. 7224660 (Violation of30 CFR § 77.1710(c)) 

Section 77.1710, supra, provides as follows: 

Each employee working in a surface coal mine or in the 

surface work areas of an underground coal mine shall be required 

to wear ... : 

*** 

(c) "[p]rotective gfoves·when handling materials or 

performing work which might cause injury to the hands; however, 

gloves shall not be worn where they would create a greater hazard 

by becoming entangled in the moving parts of equipment. 

Since Clay and~Shivley were working on equipment that had not been deenergized, they 

should have been wearing.protective gloves to insulate them from contact with energized parts. 3 

3

The record does not contain any evidence that the wearing of gloves in the situation at · 

bar would have " ... create[ d] a greater hazard by becoming entangled in the moving parts of 

29 FMSHRC 454 
Accordingly, since they were not wearing gloves, I find that Elk Run did violate Section 

77.l 710(c); supra. 

Therefore, based on all the above, I find that the Secretary has established that Elk Run 

violated Section 77.lOlO(c), supra. 

IV. Sienificant and Substantial 

A "significant and substantial" violation is described in Section 104(d)(l)ofthe Mine Act 

as a violation "of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814( d)(l). A violation is 

properly designated significant and substantial "if based upon the particular facts surrounding the 

violation there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission explained its 

interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard. is 

significant and substantial under National Gypsum the Secretary of Labor must · 

prove: (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 thatthe hazard. contributed to will result iJJ . 

an injury; and ( 4} , a reasonable likelihood that the injury in que~tion will be of a 

reasonably serious nature. 

In United States Steel Mining Company, Inc.; 7 FMSHRC 1125, 1129(August1985), the 

Commission stated further as follows: 

We have explained further that the third element of the Math_ies formula "requires 

that the Secretary establish a reasonable likelihood thatthe hazard contributed to 

will result in an event in which there is an injury." U _s. SteelMiningCo., 

6FMSHRC1834, 1836 (August 1984), We have emphasized·that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a:violation to the 

cause and effect of a hazard that must be significant and su\>stantiaL U S. Steel 

Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); US. Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75(July1984). 

The record clearly establishes the first two elements set forth above, i.e~; that Elk Run did 

violate mandatory standards (Sections 77.501, supra, 77.704-l(a), supra, and 77~1710(c), supra, 

equipment." (Section 77.l 710(c), supra). 

29 FMSHRC 455 
and that the violations contributed to the risk of a hazardous condition, i.e. a person being subject 

to electrical shock and injuries. Further, Shivley and Clay were working around exposed metal 

parts in a relatively confined area that was energized with at least 480 volts, and they were not 

wearing protective gloves.· I also note that wheilShivley was testing in Compartment No. 1. 

when the accident at issue occurred, his meter exploded. Thus, I find, given the continuation of 

the normal operations of their work, that it was reasonably likely that the violations herein would 

have led to serious injury or electrical shock. Hence, the fourth element of Mathies, supra, has 

been met. I conclude that Citation No. 7224658 and Order No's 7224659 and 7224660 were 

significant and substantial. 

V. Unwarrantable Failure 

A. Smith's testimony 

Smith found each of the violations alleged in Order Numbers 7224659 and 7224660 to 

constitute an unwarrantable failure. Smith based his opinion on Thompson's negligence, 

referring to the latter's extensive experience at Elk Run as an electrician, and his position as a 

line-crew foreman. According to Smith, "[h]e's the one that installed the transformers on the 

pole." (Tr. 92). Smith further testified that Thompson" ... was also aware that electrical work 

was going to be performed in this specific comparment4 and he was aware that the disconnecting 

and deenergization device was closed on the pole ... : he was also aware that opening a 

disconnecting device on the equipment to be worked on is not sufficient." (Tr. 57). 

Based on his·interviews withiRoach, Thompson, Clay and Shivley, Smith concluded that 

when Thompson exited his vehicle and left the area used for parking adjacent to the cited area, he 

would have seen that the pole disconnects were in the closed position. According to Smith, the 

pole disconnects were between a foot to 18 inches long, 3/4 to one inch in diameter, and were in 

a "conspicuous location" (Tr.: 50)~ approximately ten to 15 feet above the ground. 

Additionally, Smith indicated that Thompson met with Clay and Shivley prior to their 

commencement of testing at the cabinet at issue; that Thompson" ... stands ... in front of the 

motor control center[;]. .. '[and that] he sees in the open compartment the open upper area and 

lower area, and, most importantly, the incoming high-voltage termination area, and he also ... still 

has a plain sight view of these disconnects on the pole iri the closed, energized position.;' (Tr. 

51 ). Smith opined that Thompson, as a foreman, was required to be on the alert for hazards 

whether or not the miners exposed to the hazards reported directly to him. Smith asserted that 

4

According to Smith, in discussions Clay and Shivley had with Thompson regarding the 

situation of the broken fuse, the· former indicated that they would check for a grounded phase in 

the motor. Smith indicated that Clay and Shivley "discussed" with Thompson that they were 

going to check "grounds on the motor ... in the Compartment 1 lower level incoming highvoltage termination compartment. (Compartment 1, Gx. 22) (Tr. 85, 86). 

29 FMSHRC 456 
Thompson should have been aware that the disconnects on the pole were closed, and therefore 

should have required the work site to be safe, prior to the commencement of work on the cabinet 

at issue by Clay and Shivley. · 

B. Shivley's Testimony 

Shivley testified when he examined Compartment No. 1, he went behitid it to see where 

the power lines entered the cabinet, and "[i]t looked like the incoming power was rather high in 

through the box or the compartment." (Tr. Y37). Shivley indicated, based on his approximately.· 

30 years experience as an electrician, that leads supplying power to a starter box or compartment 

usually enter it at the top: According to Shivley, the wires going to the bottom of the · · 

compartment appeared to be the same size as the motor junction box located on the niofors. · ·. · 

Shivley indicated that once it was determined that there was a bad fuse in the 

compartment at issue, he told the mine foreman, Charles Roach that he needed to get in touch · 

with either Ron Plumley, the maintenance superintendent, or Nick Thompson, who he referred to 

as "the high line installer'', to obtain a fuse. (Tr. 150). · 

When Thompson arrived he (Shivley) told the latter that a fuse had blown on the belt 

motor. According to Shivley, Thompson, who was not directing the repairs or supervising him, 

asked ifhe had a device to check the insulation on the motor, as he (Thompson) did not have one' 

with him. Shivley indicated that he had his own meter, and told Thompson that he was going to 

check if the belt motor was grounded. ·After completing this task, Shivley returned to the starter 

box cabinet. He indicated that Thompson was no longer there~ 

C. Clay's testimony 

According to Clay, when he and Shivley discussed the bad fuse with Thompson he (Clay) 

said that there must be a short in the belt motor. Thompson did not tell them to open the 

disconnects on the power pole, nor did he suggest that gloves be worn before working on" ... that 

compartment[.]" (Tr. 179-180). According to Clay, there were not any insulated gloves in the 

area. 

Clay and Shivley went to the belt motor, and observed a lot of tape on various leads. 

Clay thought it was best to test for grounding at the starter belt cabinet, rather than at the motor. 

Clay indicated that Thompson did not direct them to do any testing at the cabinet. · · 

D. Thompson's testimony 

Thompson testified that on the date in issue he was not in charge of any repairs that Clay 

and Shivley were making, nor did he direct their work. He said he received a telephone call from 

Tommy Green, who told him that he thought there was an overload problem at No. 1 silo, and 

29 FMSHRC 457 
asked him (Thompson) to go there" ... to see ifl could assist them."5 (Tr. 195) Wheri Thompson 

arrived at the area in question, Shivley and Clay had already removed fuses from the 

compartment at issue, and determined that one had blown. The fuses were tested in his presence 

along with Roach, Shivley and Clay. Thompson observed that the compartment at issue had 

been opened, and he saw that the disconnect had been pulled, which normally would offer 

protection. He indicated that he did not ensure that power was not coming into the cabinet, nor 

did he ask Clay or Shivley if they had pulled the disconnects at the power pole. Thmnpson had a 

discussion with Clay and Shivley relating totesting the power lines leading to the belt motors. 

After Clay returned from testing the belt motors, he told Thompson that the leads on the 

motor were taped. Thompson told Clay that he could test at the motor starter and get the same 

reading as testing the motors. According to Thompson, he did not tell Clay where to go to 

perform the testing. Thompson indicated that as he was leaving the area to return to his duties, 

he heard a "bang". {Tr. 186).. · · 

E. The Secretary's Position 

Essentially, it is the Secretary's position that Thompson, an experienced electrician, who 

is a high-line crew supervisor, and in general is responsible for safety, should have noticed, upon 

his arrival at the area in question, that the "conspicuous" disconnects on.the power poles werein 

the closed position, and that he should have ensured that power would not flow to the power 

center where men were working. (Secretary's Post Hearing Brief, p. 1 ~). Also, it is argued that 

Thompson knew that Clay and Shivley were working in a cabinet that was connected to a high- . 

voltage lead,6 but did not ensure the cabinet was deenergized, nor did he instruct them to wear 

gloves. 

It is further argued that. Thompson should have ensured that power was not flowing into 

the compartment before he inspected the fuses and suggested that the motor control center be 

tested. 

The Secretary argues that Thompson, as a "foreman", is an agent of Elk Run {Secretary's 

Post-hearing Brief, p. 15), and is held to a high standard of care. Accordingly, his nonfeasance 

constituted high negligence which is imputed to the company. As a result, it is asserted that the 

5

Earlier, Shivley had told Roach that he had a bad fuse and suggested that Ron Plumley, 

the head of maintenance, or Thompson, be contacted to see if they had a fuse. Roach testified 

that he then called the mine office, and asked Green, the belt-man, to contact Pluniley or 

Thompson. 

6The Secretary in her reply to Elk Run's proposed findings of fact, refers to (1) 

Thompson's testimony on cross-examination, that he knew that Clay and Shivley "had" worked 

inside the cabinet at issue, (Tr. 201) and (2) Smith's testimony, in essence, that Thompson was 

fully aware that electrical measurements were going to be taken in the compartment at issue. 

29 FMSHRC 458 
violations resulted from Elk Run' s μnwarrantable failure. 

,. 

The Secretary relies on Capitol Cement Corporation, 21 FMSHRC 883, {1999), Midwest 

Material Company, 19 FMSHRC 30 (1997) and Lion MiningCompqny, 19 FMSHRC 1774, 

(1997), as supporting a finding ofμnwarrantable failure, arguing that Thompson's failure to 

ensure power would not flow to the power center where Clay and Shivley were working is 

similar to the circumstances found to constitute unwarrantable failure in these cases. 

F. Discussion 

1. Case law 

In Virginia Slate Co., 23 FMSHRC 482 (2001) the Commission summarized case law 

pertaining to unwarrantable failure as follows: 

Regarding unwarrantable failure, that termi11,ology is taken 

from section 104(d) of the Mine Act, 30 U.S.C. § .814(d), and 

· refers to mofe serious conduct by an operator in connection with a 

violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), 

the Commission determined that unwarrantable failure is 

aggravated conduct constituting more than ordinary negligence. ]d. 

at 2001. Unwarrantable failure is characterized by such conduct as 

· ''reckless disregard, "intentional misconduct", "indifference," or a 

"serious lack of reasonable care." Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC.189, 194 (Feb. 1991); see also 

Buck CreekCoal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) 

(approving Commission's unwarrantable· failure te&t ). 

Whether conduct is "aggravated" in .the contest of 

unwarrantable failure is determined by looking at all the facts and. 

circumstances of each case to see if any aggravating factors exist, 

such as the length of time that the violation has existed, the extent 

of the violative condition, whether the operator has bet;mplaced on 

notice that greater efforts are necessary for compliance, the 

operator's efforts in abating the violative condition, whether the 

violation is obvious or poses a high degree of danger, and the 

operator's knowledge of the existence of the violatiQn. See 

Consolidation Coal Co., 22 FMSHRC340, 35J(Mar.,2000), 

appeal docketed, No. 01-1228 (41

h Cir. Feb. 21, 2001}(''Conso/");· 

Cyprus Emerald Res. Corp~, 20 FMSHRC 790, · 813 (Aug. l 998), 

rev'd on other grounds, 195 F.3d. 42 (D.C. Cir. 1999); Midwest 

Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons 

Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 

29 FMSHRC 459 
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 

FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 

FMSHRC 705, 709 (June 1988). All of the relevant facts and 

circumstances of each case must be examined to determine if an 

actor's conduct is aggravated, or whether mitigating circumstances 

exist. Consol, 22 FMSHRC at 353. 

Virginia Slate Co., supra. at 486. 

The negligence of a rank-and-file miner is not imputable to the operator for pwposes of 

penalty assessment or unwarrantable failure. Whayne Supply Company; 19 FMSHRC 447, 451-

453, (1997), US. Coal, Inc., 17 FMSHRC 1684, 1686. However, the negligence of an operator's 

agent is imputable (See, Whayne, supra at 451, Rochester and Pittsburgh Coal Company, 13 

FMSHRC 189, 194-197 (1991)) US. Coal, supra, at 1686. 

2. Thompson as an A&ent of Elk Run 

The parties stipulated that Clay and Shivley were rank-and-file employees of Elk Run. 

Therefore, their negligence may not be imputed to Elk Run. (Whayne, supra). 

Section 3(e) of the Federal Mine Safety and Health Act of 1977 defines an "agent" as 

"any person charged with responsibility for the operation of all or part of a ... mine or the 

supervision of the miners in a.~. mine .... " (30 USC§ 802(e)). In this connection, in considering 

whether an employee is an operator's agent, the Commission has relied upon" ... his function, 

[and whether it] was crucial to the mine's operation and involved a level of responsibility 

normally delegated to manageinent personnel." (US. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct. 

1995); See also, Ambrosia Coal &Construction Company, 18 FMSHRC 1552, 1560 (1996) 

(holding that an employee of the operator was an agent because" ... the functions performed by 

[the employee] were crucialto the mine's operation and demonstrated an exercise a 

responsibility normally delegated to management personnel.'') Ambrosia, supra, at 1561 

(emphasis added)). 

There is not any evidence regarding Thompson's specific duties as line crew foreman. 7 

However, Thompson had been an electrician working on a line crew until he assumed his 

position as foreman approximately three months prior to the incident at issue. Since Clay and 

Shivley, both electricians, were rank-and-file employees, it would appear that, as a foreman, 

Thompson was no longer a rank-and-file employee. Of more.significance, is the testimony of 

Roach, the mine foreman, who agreed that it would be a duty of a foreman to have safety hazards 

eliminated. Thus, it would appear that the scope of Thompson's duties as foreman are those 

normally performed by operators. (See, Ambrosia, supra at 1561; See also, Section 2(e)(f) of the 

7

Thompson indicated that he is often called upon to address problems with high-voltage 

relating to power lines or transformers. 

29 FMSHRC 460 
Mine Act (Congressional declaration that mine operators "have the primary responsibility to 

prevent Un.safe conditions"). Therefore, it appears that Thompson, in general, is to be considered 

an agent of Elk Run. 

3. Thompson's F.easance or Nonfeasance as a Basis for 

. Unwarrantable Failure 

It is clear that the violations at bar constituted a high degree of danger, and it was obvious 

that the pole disconnects had not been.pulled, and that Clay and Shivley were not wearing gloves. 

The key issue is whether Thompson, as Elk Run' s agent, knew of the existence of the violations. 

The record establishes that Thompson knew tha~ Clay and Shivley h11d worked inside the 

cabinet at issue; that they had opened the cabinet door; and that the disconnect inside the cabinet 

was in the open position. Also, he knew that opening the disconnect inside the cabinet would not 

disconnect power coming into the cabinet, but he did not ensure that the disconnects on the . 

power pole had been pulled, and that the visible disconnectswere tagged andlocked.8 Nor did . 

he require Clay and Shivley to wear protective gloves. 

Smith opined, that Thompson was aware that electrical measurements were going to be 

taken in the compartment at issue. His testimony indicates.that this opinion was based upon his 

investigation which revealed that Clay and Shivley discussed in Thompson's presence that they 

were going to check for a grounded phase in the motors which, according to Smith, would · 

require that electrical measurements be taken. {Tr. 52-53). However, not much weight was · 

accorded this hearsay testimony as it was not corroborated by any of the declarants. Moreover, it 

is unclear how knowledge that Clay and Shivley intended to check motors for grounding, leads to 

an inference of Thompson's knowledge of testing to be done in the compartment at issue. 

Further, even if Thompson knew that Clay and Shivley were intending to work at this 

cabinet there was not any evidence in the record that he was aware of a violative condition i.e., 

that the disconnecting device had not be pulled open at the power pole. Although he may have 

passed the pole on his path to the area at issue, he did not have knowledge or notice then of a.ny 

condition or practice that would have alerted him to check this disconnect. 

In 'general, Thompson, as a supervisor, had a high duty to ensure safe conditions. 

However, in the context of unwarrantable failure, the scope of the inquiry is not the degree of 

care required of Thompson based on his position of foreman per se. but rather, as applied to his 

supervisory responsibility for the specific violative acts, his actions relative to the violative 

conditions, and his observations and knowledge of them. (c.f., Capital Cement Corp., supra, 

8

Thompson indicated that when addressing a high-voltage problem, the first step is to 

ensure the disconnects are pulled and work will be performed on the deenergized side of the 

disconnects. 

29 FMSHRC 461 
Midwest Material Co., supra and Lion Mining Co., supra). 

There is not any evidence that he was responsible for repair or maintenance of the 

compartment at issue.9 He was a line-crew foreman, and did not direct or supervise electricians 

Clay and Shivley. Nor did Thompson direct any of the work at issue performed by Clay and 

Shivley. Further, he did not receive any directive to perform or supervise any of the work at 

issue. He was at the site only because Roach, having been informed by Shivley that a fuse was 

bad, asked Green, a belt-man who was in the mine office, to contact either Plumley the 

maintenance chief, or Thompson. Green informed Thompson that there was an overload 

problem at silo No. 1 and asked him to go there " ... to see if [he] could assist them." (Tr. 195). 

Thompson's actions at the site at issue were extremely limited. The weight of the 

evidence establishes that he assisted in the testing of a defective fuse with a meter along with 

Shivley and Clay, and subsequently discussed with Roach where fuses may be obtained. Also, he 

talked to Clay and Shivley about testing motors. When Clay informed him.about the presence of 

tape on the leads at the belt motor, Thompson told him that he could get the same reading at the 

motor starter. However, he did not direct Clay where to go to do any testing at the motor starter. 

Moreover, there is not arty evidence that the motor starter was located in the cabinet at issue. 

Thompson had not performed ·any work relating to the compartments at issue, was not 

responsible for them, and did not know their electrical layout. Also, there is not any evidence 

that he received any training regarding the electrical layout. Further, ithas not been established 

that Thompson knew or was aware of work to be performed at the compartment at issue. 

Moreover, he did not witness the violative acts at issue. 

The Secretary relies on Capital Cement, supra, (aggravated conduct was found where a 

trained shift supervisor responded to a safety concern that a crane was shaking, operated the 

crane and began to work on the craneway; but failed to lock out any power sources to the crane 

or, to wear a safety belt while working on the craneway)~ Midwest Material Co.; supra. (a serious 

lack of care and indifference was found where the actions·of a foreman, designated to be in .· 

charge of a boom extension project, failed to lower the crane boom in accord with proper 

procedures, and did not warn a miner working with him of the danger of the actions the latter 

took to disassemble the crane boom was found to constitute a lack of care and indifference " ... 

given his experience and familiarity with [the] task ... " (Midwest Material, supra. at 35) and Lion 

Mining Co., 19 FMSHRC 1774 (1997), (relied on the Secretary's Post-Hearing Reply Brief) 

(affirmed the trial judges' determination that the conduct of the section foreman who observed 

9

According to Thompson's uncontradictedtestimony, he builds and maintains power lines 

and is called on to address problems with the high-voltage lines or transformers, but not relating 

to the compartments at issue. 

29 FMSHRC 462 
the miner operator.starting to take a cut withoutinstalling roadway posts in violation of the roof 

control plan, was a factor tending to establish an .unwarrantable failure). 10 . 

Thus, in each of these cases, the basis for a finding of unwarrantable failure was (1) 

conduct of a supervisor who was actually performing or supervising the repair work at issue, 

(Capital Cement, supra. Midwest Material, supra.) or (2) the observations of a section foreman 

that a violation was taking place and his failure to stop the operation. 

In contrast, in the case at bar, ThQmpson did.not.either perform or supervise the repair 

work at issue. Nor did he observe a yiolation actually taking place. 

Within the context of all the above, .and considering the presence of significant mitigating 

factors, I find that it has not been established that the level of Thompson's negligence regarding 

Citation No. 724658 and Order Nos. 7224659 and 7224660 reached the level of aggravated 

conduct. Thus, I find that it has not been established that these violations were as the result of 

Elk Run's unwarrantable failure. (See, Emery Mining Corp., supra). 

G. Penalty --

I find, for the reasons set forth above, (IL infra), that the level of gravity in each of the 

violations herein was relatively high, as serious injuries could have resulted as a consequence of 

employees not wearing protective gloves, while working in close proximity to energized 

equipment. Also, essentially for the same reasons as discussed above ( V, infra), and noting the 

lack of evidence that Elk Run had provided training to Clay and Shivley regarding the wiring of 

the cabinet at issue, I find that the negligence in each of the violations to have been moderately 

high. Taking into account the remaining factors in Section l lO(i) of the Act as stipulated to by 

10The Secretary in a Post-Hearing Reply Brief ("Reply Brief') also relies on Wilmot 

Mining Company, 9 FMSHRC 684 (1987). The Secretary asserts that Wilmot, supra, held that it 

is sufficient for a supervisor to allow a hazard to remain uncorrected to justify a finding of 

unwarrantable failure (Reply Brief at 3). It is argued that accordingly, Wilmot, supra, supports its 

position that the Commission has μever held that a foreman must actively supervise the work . . . . 

being performed to support a finding that his or her actions or inaction constitute an 

unwarrantable failure. (Id.). However, Wilmot, supra, does not support the Secretary's position. 

In Wilmot, supra, contrary to the Secretary's assertion, the issue was not unwarrantable failure, 

but whether the operator was negligent and whether its supervisor's negligence should be 

imputed to the operator, or if it was unforeseeable. It thus is not applicable to the issues 

presented in the case at bar. 

The Secretary also relies on Mountain Cement Co., 15 FMSHRC 1418 (1993), (ALJ), and 

Peabody Western Coal Co., 25 FMSHRC 293 (ALJ) (2003). Inasmuch as these are decisions by 

fellow Commission judges, I am not bound by them. To the extent that they are not consistent 

with the decision reached in this proceedings, I choose not to follow them. 

29 FMSHRC 463 
the parties, the fack of evidence justifying either an increase or decrease in penalty based .on the 

operators' good faith abatement, and history of violations, and placing significant weight on the 

high level of gravity for each of the violations, I find that a penalty of $8,000 for each violation is 

appropriate. 

ORDER 

It is Ordered that Citation No. 7224658 and Order Nos. 7224659 and 7224660 be 

amended to Section 104(a) citations that are significant and substantial .. It is Further Ordered, 

that within the thirty days of this decision, Elk Run pay a total civil penalty of $24,000 for the 

violations found herein.· · 

L~· Administrative Law Judge 

Distribution List: 

J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., 22nd Floor, Arlington, VA 22209 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Spilman Center, 300 Kawawha Blvd., 

East, P.O. Box 273, Charleston, WV 25321-0273 

/Ip 

29 FMSHRC 464 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 · 

. June 5, 2007 

SPARTANMININGCOMPANY,INC.,. 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH · 

ADMINISTRATION (MSHA); 

Petitioner 

V. 

SPARTAN MINING COMPANY, lNC., 

Respondent 

.· 

CONTEST PROCEEDlNGS 

Docket No. WEVA 2004-117-RM 

CitationNo. 7224650; 04/13/2004 

Docket No. WEVA 2004-118-RM. 

CitationNo. 7224651; 04/13/2004 

Docket No, WEV A 2004~ 119-RM 

Citation No. 7224652; 04/13/2004 · 

Docket No. WE-VA2004-120-RM, · 

Citation No. 7224654; 04/13/2004 

Docket-No. WEVA 2004-121-RM 

Order No. 7228963; 04/13/2004 

Docket No. WEVA 2004-122-RM 

Order No. 7228964; 04/13/2004 

Ruby Energy · 

Mine ID 46-08808 · 

CIVIL PENALTY PROCEEDlNGS 

Docket No. WEV A2005-34 

A.C. No. 46-08808-41145 

Docket No. WEV A 2005-53 

A.C. No. 46-08808-45208 

Ruby Energy 

DECISION 

Appearances: Keith E. Bell, Esq., Office of the Solicitor, U.S'. Department of Labor, 

Arlington, Virginia, for the Petitioner; · 

Mark If Heath, Esq., Spilman Thomas & Battle, PLLC, 

Charleston, West Virginia, for the Respondent. 

29 FMSHRC 465 
Before: Judge Feldman 

These consolidated proceedings, consisting of six contest and two civil penalty matters, 

arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) 

("Mine Act"). The hearing was conducted on January 31 and February 1, 2007, in 

Charleston, West Virginia. The petitions for assessment of civil penalty filed by the Secretary of 

Labor against the respondent, Spartan Mining Company, Inc., pursuant to section l lO(a) of the 

Mine Act, 30U.S.C. § 820(a), sought to impose a total civil penalty of $128,460.00 for six 

alleged violations of the Secretary's mandatory safety standards. The violations were 

identified as a result ofa Mine Safety and Health Administration (MSHA) investigation of a 

February 5, 2004, fatal electrical accident that occurred at Spartan's Ruby Energy Mine. 

The accident occurred when the victim, Kenneth A. McNeely, a 33 year old electrician with 

six years mining experience, was electrocuted while repairing a continuous miner trailing cable 

that had been struck by the continuous miner's ripper head. (Gov. Ex.10). 

At the hearing the parties advised that they had settled two of the six citations 

and orders in issue. Specifically, the parties agreed to settle 104(a) Citation No. 7224654 

and 104(d) Order No. 7228964 that are subjects in the civil penalty proceeding in 

Docket No. WEVA 2005-53. The parties' settlement agreement was approved on the 

record and is discussed below. This decision concerns the remaining two 104(a) citations, 

one 104( d) citation, and one 104( d) order. 

I. Statement of the Case 

At approximately 1 :04 p.m. on February 5, 2004, a continuous mining machine ran over 

its high voltage distribution trailing cable causing a phase to phase fault that immediately 

de-energized the continuous miner and caused a loss of power to the entire mine facility, 

including an interruption of mine fan ventilation. 1 McNeely was killed when the continuous 

miner's circuit breaker was closed by Spartan's foreman while McNeely was attempting to repair 

the trailing cable. As·a result of the accident, Spartan was cited for failing to withdraw miners 

from the working section after.stoppage of the mine's ventilation fan;. failing to protect the 

trailing cable from damage by mobile equipment; failing to remove the continuous miner from 

service; and failure to lock out the high-voltage trailing cable prior to performing repairs. 

Spartan has stipulated that the trailing cable was not locked out at the time of the accident. 

(Tr. 53). 

1 Both the mine's carbon monoxide sensor data base and the Appalachian Electric 

Power Company's (Appalachian's) metering base monitoring system reflect power was 

interrupted for 14 minutes. The carbon monoxide sensor reflects that pow~r was lost from 

1 :04 p.m. until 1: 18 p.m. (Tr. 116-18). Appalachian's meters reflect a drop in mine milliwatt 

consumption at 1 :01 p.m. and a return to normal electrical consumption at I: 15 p.m. (Gov. Ex. 

10, p.7). For the purposes of this decision, the period of power loss is determined to be from 

1:04 p.m. until 1:18 p.m. as reflected by the carbon monoxide sensor. 

29 FMSHRC 466 
An important issue in these civil penalty matters is the degree of negligence that is 

directly attributable to Spartan for each of the contested violatimis, and whether the negligence of 

Spartan's hourly employees should be imputed to Spartan based on inadequate supervision and 

control of its mine personnel. In its post-hearing brief, the Secretary, noting that Commission 

judges make de novo findings with respect to the appropriate civil penalty based on Ute evidence 

adduced at trial, requests that consideration should be givtm for the imposition of higher civil 

penalties than those initially proposed by the Secretary. (Secy hr'. atpp.28-29). 

II. Backi:round 

A continuous mining machine "cuts or rips coal from the face and loads it onto conveyors 

or into shuttle cars in a continuous operation." Am. Geological }Jistitute, Dictionary ofMining, 

Mineral, and Related Terms 122 (2d ed. 1997). The ripper head of a continuous miner is the . 

cutting drum that extracts the coal from the face. It contains angled steel tooth bits that are 

analogous to a circular saw. (Tr. 98-99), A continuous mining machine is a heavy piece of 

equipment weighing as much as several tol}S . .(Tr. 157). 

The continuous miner is energized by a high powered 995 V AC alternating: three phase 

system trailing cable. The outer rubber jacket of the trailing cable houses the three insulated 

phase wires that carry the alternating current. (Tr. 87-90). The trailing cable also contains a 

metallic monitor wire and a ground wire. (Tr. 85-86, 93-94). 

The trailing cable is connected at the power center by inserting the plug, also known as a 

"cathead," at the end of the trailing cable to a wall receptacle. (Tr. 103). Next to the wall 

receptacle is a circuit breaker and a toggle switch that renders the circuit breaker ineffective. 

The circuit breaker trips in the event of a short. circuit. The toggle switch also trips along with 

the circuit breaker in the event of a phase to ground fault. 

At the time of the accident the continuous miner was located in the No. 3 entry 

approximately six crosscuts inby and I Yz entries to the right of the power center. By way of 

measurement, facing in an inby direction at the power center, the continuous miner was 380 feet 

inby and 40 feet to the left of the power center. (Tr. 111-13; Gov. Ex 1). 

A short circuit phase to phase power failure occurs when two phase wires come in contact 

with each other tripping (opening) a circuit breaker. (Tr. 125). A ground fault occurs when one 

phase connects with the ground. While a short circuit phase to phase failure trips a circuit 

breaker, it does not render the circuit breaker inoperable in that the circuit breaker can be closed 

restoring power to the shorted cable. (Tr. 134-:35} A ground fault involving the monitor or 

ground wire also.trips the toggle switch at the power center rendering the circuit breaker 

ineffective in that it cannot be closed .. (Tr; 94). ., 

The lock out procedure consists of removal of the trailing cable plug, or cathead,.from the 

power center receptacle by the individual performing repairs. After the trailing cable is 

29 FMSHRC 467 
unplugged from the power source, that individual places a padlock in a specially designed ring or 

lip at the end of the plug. Placing the padlock atthe end of the plug prevents anyone from 

connecting the cable to the power source while the cable is being repaired. (Tr. 102-03). 

As evidenced by the fatality, a damaged high power electrical cable poses an extreme 

danger to anyone coming in contact with exposed wires. In recognition of this electrocution 

hazard Spartan has a policy of protecting cables that consists of maintaining cables against ribs to 

keep them out of the path of mobile equipment. Spartan also has a policy of disciplining 

personnel who fail to ensure that trailing cables are protected. (Tr. 159-60). 

MSHA Inspector James Humphrey described the proper actions a mine operator 

should take if a trailing cable is run over, even if there is no interruption of power. 

Humphrey explained: 

[t]he proper action that the mine operator should take once being made aware of 

this condition, he should have a certified electrician de-energize,the power from 

that cable and have it checked, the ground, the ground fault and the phases, and 

see if there's any-problems in [the cable]. 

(Tr. 466-67). 

Similarly, Steven Neace, Spartan's Ruby Energy Mine Superintendent, testified: 

Neace: 

Court: 

Neace: 

(Tr. 657-58). 

If a cable's run over and they determine it is unsafe, they'reto pull 

the cathead, have the electrician check it and check it with a meter, 

see if its grourided. If its not grounded, then they can go back to 

resume operations, put the cable back in service, put that 

equipment back in service. 

O.K. So it's either remove it from service and check to see if the 

cable is damaged. And if the cable is not damaged, return it to 

service; right? 

Right. 

Keith Hainer, a certified 'electrician employed by parent company Massey Coal Services 

as its Director of Maintenance, also testified regarding procedures to be followed when a trailing 

cable is struck by mobile equipment. Hainer opined that, ''in my experience, I have seen cables 

with internal damage and the outer jacket intact." (Tr. 718). Hainer described the method to 

"discern if there's damage or not." (Tr. 720). Hainer testified: 

29 FMSHRC 468 
Well, I'm saying instead of cutting into [the cable], I may use other methods. For 

example, to go to the power center and use different electrical devices [meters] to 

test insulation integrity without physically cutting into the cable. And that's not 

uncommon to do. 

(Tr. 722-23). 

.. 

Thus, Humphrey, Neace and Hainer all agree the proper action after a cable is run over is 

to first immediately de-energize the cable at the power station and then check the cable by using 

meters to ensure that the cable is not damaged and unsafe. _If the cable is cla,maged it must be 

kept out of service. As discussed below; Spartan failed to. follow its own safety policy. 

Section 75.313, 30 C.F.R. § 75.313,. governs the evacuation procedures when power to a 

mine ventilation fan is interrupted .. fu the event of a mine fan stoppage, electrically powered . 

equipment in each working sectionimust be de-energized, Miners must immediately be 

withdrawn from the working section to .a location outby the loading point where they may remain 

for 15 minutes.2 Ifmine ventilation is not restored within 15 lllinutes, all miners must be 

evacuated to the surface. As discussed herein, McNeely and other crew members were not 

withdrawn from the working section despite a loss of mine fan power. Although the crew should 

have been required to retreat from the working section, the crew was not required to leave the 

mine because power was restored in less than 15 minutes. 

III. Findin&s of Fact 

The following factual summary primarily is based on stipulated facts that are supported 

by MSHA's investigative findings. Factual findings based on testimonial evidence ~e indicated. 

by reference to the transcript. 

Spartan's Ruby Energy Mine is located near Delbarton, in Mingo County, West Virginia. 

The mine utilizes the room and pillar method .. On February 5, 2004, the 002 section crew, under 

the direction of section foreman Gilbert W. Sada, entered the mine at their regular starting time 

of7:00 a.m., arriving at the 002 section at approximately 7:20 a.m. Sada's crew included 

electrician Kenneth McNeely; contin.Q.ous miner operator Jamie Hatfield, shuttle car operator 

Kenneth Collins and sco()p operator Charles Smith. 

There were two continuous mining machines on the 002 section. The continuous miner 

on the left side of the section was used to mine a line of pillars from the No. 4 entry to the No. 1 

entry. The continuous miner on the right sid,e of the section mined pillars from the No. 8 entry to 

the No. 5 entry. 

2 Section 75.2, 30 C.F.R. § 75.2, of the Secretary's regulations defmes the 

''working section" as "all areas of the.coal mine from the loading point of the section to 

and including the working faces." 

29 FMSHRC 469 
Hatfield began operating the left continuous miner in the No. 4 entry. at approximately 

7:35 a.m. Mining continued in the No. 3, No; 2 and No. 1 entries a5 the day progressed. Upon 

completion of the No. 1 entry, Hatfield backed the continuous miner two crosscuts outby the 

pillar line in the No. 3 entry for servicing. Hatfield and McNeely serviced the continuous mining 

machine while the right continuous miner was used to mine the next row of pillars from the 

No. 8 entry to the No. 5 entry. At the time power was lost at 1 :01 p.m., the right continuous 

mining machine was in the No. 7 entry. 

According to Hatfield, McNeely left the area in the No. 3 entry where the machine had 

been serviced. After McNeely left, Sada instructed Hatfield to move the continuous mining 

machine into the No. 4 entry to start mining. It was Spartan's practice to keep the trailing cable 

against the rib to prevent damage from the continuous miner~ (Tr. 538). Hatfield was unaware 

that one loop of the cable had migrated from the rib into the path ofthe continuous miner. 

(Tr. 526, 538). As Hatfield trammed the continuous miner a distance of approximately · 

21 inches, one of the bit lugs on the ripper head, also called the cutting drum, struck the trailing 

cable damaging the phase wire insulation, causing the phase wires to contact each other 

ultimately resulting in a phase to phase short circuit. (Tr.156-57, 174). The continuous miner 

immediately ceased to operate having lost power the instant the ripper head made contact with 

the trailing cable. At that time, it was also apparent that power had been lost for all section 

equipment at the power station. Ventilation was simultaneously interrupted as the mine fan 

ceased operating. The mine's carbon monoxide sensor data base reflects that mine power was 

lost at approximately 1 :04 p.m. 

Although Hatfield now claims that, at the time of the accident, he believed the loss of 

power was caused by a widespread Appalachian Power Company outage, Hatfield reluctantly 

conceded his initial belief was that the continuous miner lost power because the trailing cable 

had been damaged. Hatfield testified: 

Court: 

Hatfield: 

Court: 

Hatfield: 

Court: 

Okay. I just want to understand in my mind. When you say that 

the cable was not that bad, how do you mean that? 

Well, it didn't appear to me that it was htirt. Like I say, the outer 

jacket wasn't even hurt. The bit lug, it didn't smash through the 

cable. It was just - - barely had it caught to where I couldn't pull it 

out. It wasn't - -. 

Did you have any reason to believe that the cable was damaged? 

No. 

Did. the power to the continuous miner go off at the same time that 

the bit lug hit the - - came into contaCt with the cable? 

29 FMSHRC 470 
Hatfield: 

Court: 

Hatfield: 

(Tr. 511-13) ... 

.. 

When I went to tram backwards in order to repo~ition my min.er,-

that' s when the power went off on the miner. I went walking 

toward the miner, and as I was walking toward the front of the 

miner to look at the cable, I noticed that all the power was off ... 

AU right. Did you make a - - was there any connection in your . 

mind between the power to the continuous miner going off and the . 

ripper head hitting the cable? 

When I was operating the miner, the first thought I had was that it 

was the cable problem. That's what I thought first. 

Foreman Sada and shuttle car operator Collins were a few feet outby the continuous 

mining machine when contact with the ripper head occurred. (Joint Stip. No.15). Sada 

described his position as "approximately 45 feet from,the ripper head,". and he agreed that he was 

"in close proximity" to the ripper head when the cable was struck. (Tr. 550, 561). As Sada 

observed Hatfield tramming the continuous miner, the continuous miner lost power and there 

was a loss of power throughout the section. Sada asked Hatfield if he had struck the cable. 

Sada testified Hatfield responded that "I'm on it, but I'm barely on this cable.'~ (Tr. 557) . 

. Sada admits he noticed the loss of power at the same time Hatfield told J:rim the ripper 

head had contacted the cable, (Tr. 562, 563-64). Although Sada, like Hatfield, now.claims that, 

at the time McNeely was electrocuted, he believed there was a wide spread utility9ompany 

outage, he conceded that his "first instinct" was that the loss of power was attributable to the 

damaged cable. (Tr. 554). 

Sada left Hatfield and Collins at the.continuous miner and walked four crosscuts outby 

and one entry to the right arriving in. the No. 4 entry where the section phone was located by the 

feeder. (Gov. Ex. 1). Sada phoned outside to the surface and spoke to superintendent Neace who 

informed Sada that all underground power, power to the preparation plant, and power to the mine 

fan were out. 

Neace and Sada claim that Sada did not inform Neace that the trailing cable was struck 

when power was lost. Neace and Sada also claim Neace told Sada that "Appalachian's got us 

out." (Tr. 275-79). MSHA accident investigators interviewed Sada and Neace shortly after the 

accident during interview sessions conducted on February 8, February 10, and February 23, 2004. 

(Gov. Ex. 10). MSHA's accident report did not find that Spartan was acting under the mistaken 

belief that a power company failure had occurred at the time of the accident. Id. Moreover, 

29 FMSHRC 471 
it is significant that Neace does not assert that he told McNeely that the loss of power was due to 

a utility company failure when McNeely telephoned Neace moments after Neace had spoken to 

Sada. 

Surprisingly, both Sada and Neace testified that, even with the benefit of hindsight, they 

still do not believe the striking of the cable and simultaneous loss of power should have alerted 

them that the cable was damaged. (Tr.· 561, 648-53). In fact, despite a mandatory company 

policy of testing cables that have been ruii over for potential damage, Neace testified that he 

continues to believe that the loss of power at the exact time the cable was struck could have been 

"a coincidence" that occurred at the exact moment a utility company power outage occurred. 

{Tr. 652, 657..;58). 

At approximately 1:06 p.m.,3 while Sada was at the feeder speaking to Neace on the 

phone, Hatfield and Collins attempted to remove the trailing cable from beneath the continuous 

miner's ripper head. However, their attempts failed. Collins walked approximately six crosscuts 

outby to the section belt head to retrieve a scoop for the purpose of using the scoop to bump the 

ripper head from the trailing cable. Collins met scoop operator Charles Smith at the belt head. 

Collins and Smith brought the scoop back to the continuous miner. 

As Sada left the area of the feeder where the section phone was located, McNeely 

approached the section phone. Between· 1 :07 p.m. and 1 :08 p.m., McNeely phoned Neace who 

remained on the surface. Neace states that McNeely inquired what Sonny Vance, the chief 

electrician, had done to de-energize the high voltage. Neace stated he told McNeely that he did 

not know, and that all personnel would have to leave the mine if the ventilation fan did not 

resume operation within 15 minutes. (Joint Stip. No~ 7). Significantly, as previously noted, 

Neace apparently did not tell McNeely that the loss of power was due to an Appalachian Power 

Company failure. 4 

Sada returned to the continuous miner at approximately 1 :09 p.m.. As he approached he 

could see the scoop being operated in front of the continuous miner. At that time, McNeely had 

returned fr.om the section phone and was sitting on a personnel.carrier in the crosscut adjacent to . 

3 Reconstruction of the timing of events is based on Spartan's chronology admitted 

into evidence as a DVD. {Tr 712-14; Resp. Ex. B). The record was left open for a written 

synopsis of the DVD summary of events. (Tr. 773-7 4). Spartan submitted the written 

summary on May 1, 2007. 

4 McNeely phoned Neace at 1 :07 p.m. McNeely began the repair shortly thereafter and 

was killed at approximately 1: 18 p.m. Neace requested an ambulance at approximately 1 :20 p.m. 

It is difficult to determine the purpose ofMcNeely's telephone call if McNeely and Neace did not 

discuss the cause of the power loss only minutes before McNeely was to begin repairing the 

cable. 

29 FMSHRC 472 
Sada' a position between the No. 3 and No. 2 entries. Sada states he told McNeely that the power 

was off; the mine fan was down, and thattheywoul4 have to go outside in IS minutes. . 

Smith bwnped the scoop against the ripper drum, allowing Hatfield to pull the trailing 

cable free. According to Hatfield and Sada, at that time, Sa<la overheard Hatfield say the cable 

was freed, and, that the .cable jacket '.'was not even busted." (Joint Stip. 11). 

- '· ~ . 

After Sada left to go to the right side of the section to inform miners that they may have 

to evacuate the mine, McNeely arrived at the continuous mining machine and told Hatfield and 

Collins ''that he needed to check the damaged area of the cable." (Stip. No. 12). Although 

Hatfield and Sada deny they had any reason to believe the cable was damaged, it is apparent that 

McNeely immediately recognized the short circuit in the cable. 

McNeely also informed Hatfield and Collins that they had 15 minutes until they had to 

leave the section. McNeely began cutting the outer jacket off the trailing cable "at the damaged 

area." (Joint Stip. 12), 

Smith returned the scoop to the section belt head. After traveling to the right side of the 

section, Sada returned to the section mme phone . 

. McNeely and Hatfield con~inued repairing the cable as Collins pulled on the waterline, 

that was also stuck, in an attempt to remove it from under the ripper drum. McNeely cut about 

14 inches of the outer jacket off the trailing cable, exposing the three power phases, a ground 

wire, and a monitor wire. Two of the .power phases were burned and needed to be cut and 

spliced. The outer jacket on the third power phase was damaged and needed to be. re'."'.insulated. 

The ground and monitor wires were not damaged. McNeely walked to his personnel .carrier to 

get tape and connectors. He returned on his personnel carrier, parking it behind the continuous 

mining machine. · 

As McNeely ~orked on the second powe~phase, Hatfield heard a humming noise and felt 

air movement. The mine carbon m~noxide sensor data base reflects power was restored to the 

mine at 1:18 p.m., approximately 14 minutes after power was lost. McNeely asked Collins to go 

to the section power center to see if mine power had been restored. After repairing the first two 

phases, McNeely began work on the third phase. He cut the third phase apart and prepared both · 

ends for the connector. 

Sada was at the dwnping point area at l: 18 p.m., waiting for a call from Nea~e, when the 

main re-closer switch located on the surface apparently was closed restoring power to the mine. 

Sada.noticed air pressure on the back-up check curtains indicating that the mine fan was 

operating and he realized that mine power had been rest.ored,. · . 

Sada went to the section power center and started closing the circuit breakers for,aH of the 

face equipment.. All cabie plugs were still attached to their receptacles on the power center. 

29 FMSHRC 473 
Sada knew that the trailing cable had not been focked out because the cathead was plugged into 

the power station receptacle. (Tr. 602; Gov. Ex. 3K). Sada first closed the circuit breaker for the 

right continuous mining machine. At approximately 1 :20 p.m., Sada next closed the circuit 

breaker for the left continuous mining machine. McNeely, who was still working on the third 

power phase, received a fatal electrical shock when the electrical energy was transferred through 

McNeely when the circuit breaker was closed. The trailing cable's circuit breaker momentarily 

closed and instantaneously opened as the phase to ground fault tripped the ground fault toggle 

switch. ·Sada continued to engage the circuit breakers for the shuttle cars, scoop chargers, and 

pumps. 

As Collins walked toward the power center to see if the power had been restored, 

he saw Sada closing the circuit breakers. Collins called out to Sada, telling him not to close 

the circuit breaker for the left continuous mining machine. Collins heard Sada say, "Oh, no." 

(Joint Stip. 18). 

Hatfield checked McNeely for vital signs and called for help. He immediately started 

performing CPR. Randy Mahon, the right continuous mining machine operator, who was in the 

No. 4 entry, heard Hatfield calling for help and called out to Sada and Collins to go to the 

left continuous mining machine. Mahon traveled to the riifue 'phone at the section dumping point 

and called outside to Neace. He told Neace that a person had been electrocuted and that an 

ambulance was needed. Sada, Collins, Vance and other members of the crew helped with first 

aid and the transportation of McNeely out of the mille. , .. ·· 

The ambulance service was notified by Neace atapproximately 1 :20 p.m. The 

ambulance arrived at the mine site at 1 :35 p.m., just before McNeely was brought to the surface~ 

The ambulance departed the mine with McNeely at 2:08 p.m., arriving at Williamson Memorial 

Hospital at 2:40 p.m., where it was determined that McNeely had died. 

There is a re-closer, also known as a closure switch or main circuit breaker, located on the 

surface that feeds electrical power throughout the mine property on the surface and underground. 

Circuit breakers are tripped (opened) as a consequence of under-voltage or loss of power. Circuit 

breakers are designed with intentional delays of as little as hundredths of a.second to allow the 

circuit breaker closest to the fault to open before the main mine re-closer senses a loss in power 

and de-energizes the entire mine. {Tr. 677). When the re-closer operis, all circuit breakers in 

the mine trip as a safety precaution, so that when the re-closer is closed and power is restored to 

the mine, equipment does not automatically re-energize. {Tr. 681-82). 

An MSHA accident investigation team arrived at the mine shortly after the accident. 

The investigation team included MSHA Inspector James R. Humphrey and MSHA Electrical 

Engineer Marcus Smith, both of whom testified at the hearing. The accident investigators found 

that a bit lug on the right side of the ripper drum damaged the cable, bursting the inner voltage 

insulation, allowing two power phases to contact each other. Although such an event would 

normally only cause a loss of power to the mining machine at the power center, in this case, the 

29 FMSHRC 474 
resulting phase-to-phase short circuit nearly burned through the conductors and caused the main 

mine re-closer that supplies electricity underground and on the surface to de-energize, resulting 

in aJoss of power to entire underground min~, themine fan and the preparation plant. The left . 

side continuous mining machine circuit breaker also opened as a result of the fault. The opening 

of the main mine re-closer.caused all other mine section circuit breakers to open. 

The investigators determined the widespread power.failure occurred because the 

tolerance, or timing, between the two breakers was close enough for the fault to pass through the 

circuit breaker for the continuous miner opening the re-closer.. (Tr. 678-79). ;fu other words, 

the short circuit response time of the re-closer was improperly set. (Gov. Ex. 10, p. 7). 

The malfunction was corrected by resetting the timing for the re-closer. 

As previously noted, Spartan is contesting two 104(a) citations, one 104(d)(l) citatipn, . 

and one 104(d)(l) order in these proceedings. Namely, Citation No. 7224651, issued under .. · 

104(a) of the Mine Act, cites a violation of the mandatory safety standard in 30 C.F.R. § 75.606 

for failure to protect trailing cables from damage from mobile equipment; Citation No. 7224650, 

issued under section 104(a) of the Mine Act, cites a violation of the mandatory safety standard 

in 30 C.F.R. § 75.511 for failing to lock outhigh-voltage.cables prior to repair; Citation 

No. 7224652, issued under section;104(d)(l) of the Mine Act, cites a violation of the.mandatory 

safety standard in 30 C.F.R. § 75.l 725(a) for failing to remove unsafe equipll1ent from service; . 

and Order No. 7228963, issued under section 104(d)(l) of the Mine.A¥t, cites a violation of the _ 

mandatory safety standard in 30 C.F.R. § 75.313(a)(3) for failing to. immediately withdraw mine 

personnel from the working section to a position outby the loading point when mine fan _ 

ventilation was interrupted. The merits of the citations and order, as well as their appropriate 

civil penalties, are addressed.below. 

IV. Further Findin~s of Fact and Conclusions 

Before addressing the merits of the contested citations, it is helpful to address the 

underlying issues of negligence and the penalty criteria that apply in these matters ... The issue of 

duplicative citations will also be addressed because the lock put procedure is required for both 

removal from service and for repair. 

a. hnputation of Negligence 

As a threshold matter, the degree of negligence attributable to a mine operator is an·. 

essential element of a civil penalty proceeding. While there are several contributing causes of 

this accident, the proximate cause of the fatality is the failure to lock out the trailing cable prior 

to performing repairs. Spartan attempts to dmrinish its responsibility by as.serting that McNeely 

was a certified electrician familiar with tag and lock out procedures who had participated.inannual training that emphasized the importance of following such procedures. (Spartan br. at 

p.14). 

29 FMSHRC 475 
Obviously, McNeely's failure to lock out was a grievous mistake. Sada told McNeely he 

would have to leave the mine in· 15 minutes. McNeely attempted to repair the cable during this 

15 minute period. McNeely cc>ntinued to repair the cable even after he apparently realized that 

mine power had been restored. Perhaps McNeely, an experienced electrician, believed that the 

continuous miner would remain de-energized based on his conversations with Neace and Sada. 

In the final analysis, McNeely' s explanation for his conduct cannot be ascertained. Lacking the 

benefit ofMcNeely's perspective, I am unable to conclude that McNeely's failure to follow 

fundamental lock out procedures rose to the level of employee misconduct. In other words, 

given the facts in this case, it is inappropriate to place blanie primarily on the victim. 

Nevertheless, the Secretary's regulation in 30 C.F.R. § 75.511 requires electrical 

equipment undergoing repair to be locked out only by "the persons who perform such work." 

Thus, the Secretary's mandatory safety standard clearly required McNeely to lock out the trailing 

cable. However, with respect to Spartan's negligence and culpability in these proceedings, the 

arialysis does not stop there. 

Operators are liable without regard to fault for violations of the Mine Act. See e.g., 

Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); AlliedProducts Co. v. 

FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Western Fuels-Utah, Inc., 10 FMSHRC 256, 

260-61 (March 1988), aff'd on other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 

8 FMSHRC 1632, 1634-36 (Nov. 1986), ajf'd, 868 F.2d 1195 (10th Cir. 1989). Thus, 

even in the event of serious employee misconduct, the Commission and the courts have also 

consistently held that a miner's misconduct in causing a violation is not a defense to liability. 

See, eg. Allied Products, 666 F.2d at 893-94. In this regard, in Ideal Cement Co., 13 FMSHRC 

1364, 1351 (Sept. 1991), the Commission noted that, "[u]nder the liability scheme of the Mine 

Act, an operator is liable for the violative conduct of its employees, regardless of whether the 

operator itself was without fault and notwithstanding the existence of significant employee 

misconduct." 

While a mine operator's fault, or lack thereof, is not determinative on the issue of a fact 

of occurrence of a violation, it is an important factor to be considered in assessing a civil penalty. 

Asarco, Inc., 8 FMSHRC at 1636. Ordinarily, the conduct ofrank;.;.and-file miners is not 

imputable to the operator in determining the degree of negligence for penalty purposes. 

Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982). Rather, the operator's 

supervision, training, and disciplining of its miners is relevant. Id.; Western Fuels-Utah, Inc., 

10 FMSHRC at 261. 

As Spartan'S mine foreman, Sada was acting as Spartan's agent at the time of the 

accident. Thus, Spartan is liable for Sada's direct acts of negligence. For example, for degree of 

culpability purposes, Spartan can be properly charged with Sada's direct acts of negligence such 

as Sada's failure to order the withdrawal of personnel from the working section although he 

knew mine fan ventilation had been interrupted. Moreover, as discussed below, negligence 

29 FMSHRC 476 
associated with the lock outfailure c~ be directly attributable to. Spartan as Sada conc~es he 

knew the cathead had not been locked out when he closed the continuous miner's. circuit breaker. 

His spontaneous utterance of "Oh, no" when Collins cautioned him not to close, the circuit 

breaker is evidence .of Sada's awareness that the trailing cable required repair. 

Although McNeely was the person responsible for placing the padlock ,on the cathead, 

Hatfield apparently knew the trailing cable had not been tested for damage or otherwise locked 

out prior to repair.·. Notwithstanding the negligence that can be directly attributed to Spartan, the 

negligence of McNeely and. Hatfield must also. be imputed to Spartan as a consequence of Sada's 

lack of supervisic:m and control of his subordinates. Spartan cannot escape the imputation of 

negligence of rank-and-file personnel by asserting that its foreman was unaware of the actions of 

his crew. Id. In this regard, Spartan's assertion: that Sada did not direct Hatfield and Collins to 

retrieve a scoop for the purpose of freeing the cable; that Sada did not direct Collins and Smith to 

use the scoop to bump the ripper heacl off of the·cable;5 and that Sada did not know McNeely was 

repairing the cable; are aggravating rather than mitigating circumstances. Moreover, all of these 

activities were permitted to occur during a period when the loss of ventilation required the 

removal of everyone from the working section; 

Finally, any claimed mitigation based on Spartan' s assertion that Sada had not informed 

Neace, the mine superintendent, of the potential hazard caused by the trailing cable is 

unavailing. It is well settled that the principal (Spartan) is charged with the knowledge of its 

agent (Sada). 

· b. Civil Penalty Criteria . · 

Section l IO(i) of the Mine Act 30 U.S.C. § 820(i), sets forth the statutory civil penalty 

criteria used to determine the appropriate civil penalty to be assessed. In this regard, 

section 11 O(i) provides, in pertinent part: 

The Commission shall consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on,:the operator'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. 

5 Despite observing the immediate loss of power when the cable was struck, Hatfield and 

Sada now allege that they did not think the trailing cable was damaged because the ripper head 

had barely touched the cable and the outer jacket "did not look bad." (Tr. 507-08). As discussed 

infra, it is difficult to imagine why Hatfield and Sada did not wait to tram the continuous miner 

off of the cable after power was restored if they believed the trailing cable was not damaged, 

instead of using the scoop to dislodge the cable. 

29 FMSHRC 477 
Commission judges make de novo findings with respect to the penalty criteria in 

section 11 O(i) •based on the record in adjudicatory proceedings, and they are not bound by the 

Secretary's proposed civil penalties; Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983),. 

ajf'd, 736 F.2d 1147 (7th Cir. 1984). Spartan is a large mine operator and the imposition of the 

civil penalties in this matter will not impede Spartan's ongoing business operations. The history 

of violations and·Spartan's abatement efforts are not a material factor in determining the 

appropriate penalty liability. As a general proposition, the material considerations concern 

gravity and negligence. The magnitude of gravity associated with subject violations is 

self evident. As discussed below, the magnitude of negligence revealed by the trial testimony 

and documentary evidence that is attributable to Spartan, either directly or through imputation, 

requires the-imposition of civil penalties that are higher than those initially proposed by the 

Secretary. 

c. 104(a) Citation No. 7224651 - Protection of Cable 

Citation No. 7224651 alleges a violation of the mandatory safety standard·in 

section 75.606, 30 C.F.R § 75.606. The citation states: 

The 2/0 A WG trailirig cable that provides 995 V AC power to the Joy 14CM15 left 

continuous mining machine, serial number 1408, was not protected to prevent 

damage by mobile equipment. When the mining machine, which was parked 

about 20 feet outby surveyor spad 3463, was trammed forward about 21 inches, 

the cutter head smashed the cable. This forced energized conductors from two 

phases to come into contact, creating a short circuit that caused a loss of electrical 

power to the entire mine. This violation is a contributing factor to the fatal 

accident which occurred on February 5, 2004, on the 001MMU,10th right section, 

at a location approximately 20 feetoutby surveyorspad 3463 in the number 3 

entry. 

(Gov. Ex. 4). The citation was designated as significant and substantial (S&S) and it was 

alleged that it was reasonably likely that the hazard caused by the cited condition will result in 

a fatality. The gravity of the violation was characterized as severe in that a fatality had occurred. 

The degree of negligence attributed to Spartan by the Secretary was moderate. The Secretary 

proposed a civil penalty of$32,500.00 for Citation No. 7224651. 

Section 75.606 of the Secretary's regulations provides that "[t]railing cables shall be 

adequately protected to prevent damage by mobile equipment." Section 75.606 implements 

a miner safety statute. Thus, the goal of section 75.606 is to protect miners not cables. 

This mandatory standard-furthers safety by requiring mine operators to protect miners from the 

hazard posed by damaged cables. 

29 FMSHRC 478 
Spartan argues that the facts do not support a violation of section 75.606 because Spartan 

has a policy to prevent cables from damage, as well as a personnel policy whereby persons 

causing damage to a trailing cable will be disciplined. (Spartan br. at p.9). Spartan summarized 

its policy in its post-hearing brief: 

Id. 

Ruby Energy's policy is that, if a cable has been run over and it is determined to 

be unsafe, the electrician would remove the cathead, effectively removing it from 

service, and the electrician checks it to determine if it is grounded. (Tr. 657). 

If the cable is not damaged, the equipment may be placed back in service. 

(Tr. 658). 

With respect to the fact of occurrence· of the violation, as previou&ly noted, the Mine Act 

is a strict liability statute. Substance governs over form. Thus, a policy of protecting miners 

from the hazard associated with damaged trailing cables does not i1;1sulate an operator from 

liability in the event of cable damage. The fact that the trailing cable was run over and damaged 

by the continuous miner is. beyond dispute. Accordingly, the facts support a violation of 

section 75.606 ... 

The degree of negligence that should be attributed to Spartan is a more. complex. issue. 

The evidence reflects Spartan tried to keep trailing cables out of the path of mobile equipment by 

keeping the cables against the ribs .. In this instance, the cable was damaged because, 

unbeknownst to Hatfield who was tramming the continuous miner remotely, a portion of the 

cable had become dislodged from the rib and looped in front ,ofthe continuous miner. Thus, the 

act of running over the cable while tramming the continuous mine.r evi!iences, ::tS. the Secretary 

suggests, no more than a moderate degree of negligence. However, analysis of the degree of 

negligence issue does. not stop here. 

As Spartan recognizes, the section 75.606 obligation placed on mine operators to prevent 

damage to cables from mobile equipment includes the obligationto ensure that.cables struck by 

mobile equipment are not damaged. In other words, operators cannot satisfy their responsibility 

of protecting cables by turning a blind-eye after cables are struck. That is why Spartan admits it 

has a policy of removing a cathead from service and checking .for damage if a cable is run over. 

However, Spartan failed to follow its own policy. The question is the degree of negligence that 

should be attributed to Spartan for its failure to.follow its basic safety policy.,.· 

This brings us to the fundamental issue that is present throughout these pr<.lceedings. 

Namely, whether there is substantial evidence that Sada, as Spartan's agent, knew or should 

have known that there was at least a reasonable likelihood that the trailing cable was damaged. 

The Commission has held that ''the substantial evidence standard may be met by reasonable 

29 FMSHRC 479 
inferences drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 

(May 1984). fuferences based on indirect evidence are "inherently reasonable" ifthere is a 

"logical and rational connection between the evidentiary facts and the ultimate fact to be 

inferred." Id. 

Sada's assertion that he did not believe the cable was damaged is not supported by the 

facts. Sada was standing in close proximity to the continuous miner when he observed the 

instantaneous loss of power when the destructive and invasive ripper head of a multi-ton piece of 

equipment came to rest on top of the trailing cable. (Tr. 550, 557, 561). Both Sada and Hatfield 

concede they initially believed the loss of power was caused by the damaged trailing cable. 

(Tr. 511-13, 554, 562, 563-64). It is difficult to reconcile the purported subsequent belief of 

Hatfield and Sada that the trailing cable was not damaged, with the decision to bump the ripper 

head with the scoop to dislodge the cable, instead of waiting to tram the continuous miner off of 

the cable after power was restored. Rather, it appears that the use of the scoop was motivated by 

a desire to access the damaged portion of the cable so that it could be repaired. Sada and 

Hatfield's exculpatory assertions to the contrary are entitled to little weight. 

Finally, Spartan has not explained the discrepancy between McNeely's immediate 

realization that the cable was damaged with Sada's purported belief that the cable remained 

intact. In the final analysis, a person familiar with electrical equipment used in the mining 

industry should have appreciated the significance of the loss of power upon contact with the 

trailing cable. Alabama By-Products Corp., 4 FMSHRC 2128 (Dec. 1982). The' assertion that 

Sada did not have a substantial basis for believing the cable was damaged simply is not credible. 6 

However, even if Sada believed the cable was undamaged despite the continuous miner's 

loss of power, Sada still knew the trailing cable had been run over by the continuous miner. 

Under such circumstances, Sada's failure to ensure that the cathead was disconnected from the 

power station and tested to determine if it had been damaged constituted a reckless disregard of 

an electrocution hazard. As its agent, Sada' a negligence is directly attributable to Spartan . 

.. Resolution of the questions of significant and substantial and gravity are self-evident. 

A violation is properly designated as S&S in nature if, based on the particular facts surrounding· · 

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

violation will result in an injury oi'an illness of a reasonably serious nature. Mathies Coal Co.; 

6 FMSHRC 1, 3-4 (Jan. 1984); Nat'!. Gypsum Co, 3 FMSHRC at 825. The Commission has 

explained that an S&S finding requires the Secretary to establish a reasonable likelihood that the 

hazard contributed to will result in an event in which there is an injury. U.S. Steel Mining Co., 

Inc., 6 FMSHRC ·1834, 1836 (Aug. 1984). The Commission has also emphasized it is the 

6 Obviously, Sada did not intend to harm McNeely. This was a tragic accident. 

One can only speculate why the trailing cable circuit was closed. It may have been closed by 

mistake during a moment of inattention while Sada was closing other section equipment breakers 

at the power station after the restoration of power. 

29 FMSHRC 480 
contribution of a violation to-the cause and effect of a hazard that must be significant and 

substantial. Id. at 1868. The Commission subsequently reasserted its prior determinations that, 

as part of any ''S&S" finding; the Secretary must prove the reasonable likelihood of an injury 

occurring as a result of the hazard contributed to by the cited violative condition or practice. 

Peabody Coal (;ompany, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 

18 FMSHRC 508 (April 1996). 

The hazard contributed.to by failing to ensure that distribution cables remain undamaged 

is illustrated by this accident. When damaged electrical cables are ignored, they are not 

de-energized or otherwise isolated to. prevent hazardous contact. In short, they present the hazard 

of electrocution. Accordingly, the violation. of section 7 5 .. 606 is properly designated· as S&S. 

Obviously, the gravity of the violation is extreme as evidenced by the fatality in this case. 

As noted, Spartan is a large mine operator. It has neither been contended nor shown that 

the imposition of the civil penalties in this· case will pose, a financial ·hardship that will interfere 

with Spartan's continuing mining operations .. Given the S&S nature of the violation, the extreme 

gravity, and the reckless disregard that gave rise to its occurrence, a civil penalty of $50,000.00 

shall be imposed for Citation No. 7224651. 

d. The Duplicate Citation Issue 

Spartan has stipulated that the trailing cable was not locked out. Thus, it is undisputed 

that the continuous miner was neither removed from service nor locked out prior to repair. 

However, Spartan contends that Citation No. 7224650 citing~ violation of30 C.F.R. § 75.511 

for failing to lock out high-voltage cables prior to repair, and Citation No. 7224652 citing a . 

violation of 30 C.F .R. § 75 .1725( a) for. failing to remove unsafe equipment fr9m service, are 

duplicate citations. In support of this argument; Spartan avers that both the repair of electric 

equipment and its removal from service require the equipment to be locked and tagged out. 

Thus, Spartan argues that these citations are duplicative because they do not impose separate and 

distinct legal duties on the mine operator. 

It is well settled, as Spartan suggests, that .citations are .duplicative if the cited 

standards do not impose separate and distinct duties upon an operator. Western Fuels-Utah, Inc., 

19 FMSHRC 994, 1003-05 (June 1997); Cyprus Tonopah Mining Corp., lSFMSHRC 367, 378 

(Mar. 1993 ). In determining if separate and distinct duties are required, the Commission looks to 

whether the cited mandatory standards require the same acts or omissions. Cumberland Coal 

Resources, LP, 28 FMSHRC 545, 553 (Aug. 2006). 

29 FMSHRC 481 
Here, Spartan was obligated to choose between distinct alternative duties. It could have 

immediately locked out the continuous miner for the purpose of initiating repairs, or, it could 

have postponed repairing this unsafe equipment by removing it from service by means of 

locking and tagging it out. Spartan chose to do neither. Its inaction constituted separate and 

distinct acts of omission. Consequently, Citation Nos. 7224650 and 7224652 are not duplicative. 

A discussion of the merits of each citation follows. 

e. 104(a) Citation No. 7224650 - Lock Out Procedure 

Citation No. 7224650 alleges a violation of the mandatory safety standard in 

section 75.511, 30 C.F.R. § 75.511. The citation states: 

The section electrician and the continuous mining machine operator performed 

. electrical work on a distribution circuit while the disconnecting device was not 

locked out nor suitably tagged .. They were splicing and repairing a daniaged 

area inthe 2/0 A WG trailingbable which provided 995 V AC power to the 

Joy 14CM15 left continuous mining machine, serial number 1408, while the cable 

plug was connected to the plug receptacle. While performing this work, the 

circuit breaker was closed, causing the section electrician to be electrocuted. 

This violation is a contributing factor to this fatal accident which occurred on 

February 5, 2004, on the MMU, 10•h right section, at a location approximately 

20 feet outby surveyor spad 3463 in the number 3 entry. 

(Gov. Ex. 6). The citation was designated as significant and substantial (S&S) and·it was noted 

that the hazard caused by the cited condition resulted in a fatality. Thus, the gravity of the 

violation was characterized as severe in that a fatality occurred. The degree of negligence 

attributable to Spartan by the Secretary was moderate. The Secretary proposed a civil penalty of 

$32,500.00 for Citation No. 7224650. 

Section 75.511 of the Secretary's regulations provides, in pertinent part: 

No electrical work shall be performed on low-, medium-, or high-voltage 

distribution circuits or equipment, except by a qualified person or by a person 

trained to perform electrical work and to maintain electrical equipment under the 

· direct supervision of a qualified person. Disconnecting devices shall be locked out 

and suitably tagged by the persons who perform such work .... 

Spartan has stipulated that the trailing cable's cathead was connected to the power center 

and not locked out at the time McNeely was performing repairs. Consequently, the facts 

demonstrate the fact of occurrence of a section 7 5 .511 violation. With respect to negligence, it is 

true that the terms of section 7 5 .511 required McNeely, as the certified electrician performing 

repairs, to lock out the cathead at the power source. McNeely's failure to do so was either a 

29 FMSHRC 482 
careless act evidencing. extremely high negligence, or a conscious omission based on his belief 

that power would remain off. In either event, McNeely's .. conduct was highly negligent. 

The question is whether the negligence associated with the failure to utilize basic lock out 

procedures can be either directly attributed to; ·or, imputed to Spartan, McNeely was the only 

electrician at the section. McNeely immediatelyrealized the cable was damaged and in need of 

repair. As previously discussed, Sada knew the. continuous miner had lost power the instant the 

ripper head contacted th~ trailing cable. ·Sada also admits he knew the. trailing cable had not 

been locked out at the power center even though it had been run over by mobile equipment. 

(Tr. 602; Gov. Ex. 3K). As previously discussed, Sada hadreason to know that the cable was 

damaged. Sada's failure to respond to the. potential hazard posed by a damaged cable constitutes a 

conscious disregard that is directly attributable to Spartan. As noted, even Sada's :mistaken belief 

that the cable was undamaged is not a mitigating circumstance because it was brought about by 

Spartan' s failure to follow its own safety procedures that would have confirmed the defective 

condition of the cable. 

With respect to imputation, as previously noted, the neglig~nce of a rank-and-file miner 

can be imputed to a mine operator ifthe miner is not properly supervised. As a threshold matter, 

proper supervision required withdrawal from the working section as a consequence of the 

interruption of mine ventilation. Thus, -McNeely, Hatfield and Collins should have been ordered 

to withdraw from the working section rather than continue to work on the cable in an environment 

devoid of mine ventilation. Instead, Sada permitted McNeely, the only electrician at the section, 

to remain at thesite of the damaged cable without ensuring that proper procedures were followed. 

Sada's lack of supervision as evidence9 by his. asserted lack of knowledge of the activities of the 

members of his crew, including his electrician, when ventilation W(ls interrupted and a trailing 

cable had been struck, warrants the imputation of an extremely high degree of neglig~nce. 

It is apparent that Citation No. 7224650 was properly designated as S&S in that it is 

reasonably likely thatthe failure to lock out a damaged distribution cable prior to performing 

repairs will result in a fatal electrocution accident. .Tue contribution of the violation to a fatality 

reflects the extreme gravity of the cited violation. Given the S&S nature of the violation, the 

extreme gravity, and the reckless disregard that enabled a splicing repair to occur on a damaged 

cable that Spartan knew was not locked, a civil penalty of $50,000.00 shall be imposed for 

Citation No. 7224650. 

f. 104(d) (1) Citation No. 7224652 - Removal From Service 

Citation No. 7224652 alleges a .violation of the mandatory safety standard in 

section 75.l 725(a), 30 C.F.R. § 75.1725(a). The citation states: 

The operator, after witnessing the creation of an unsafe condition on a piece of 

mobile equipment, failed to cause the equipment to be immediately removed from 

service. When the 995VACJoy 14CM15 left continuous mining machine (serial 

29 FMSHRC 483 
· ntlmber i408) trammed onto its 210 AWG trailing cable, the section foreman was 

present and knew that the cable was damaged.·· He also witnessed the mining 

machine losing power when this occurred. Afterwards, the section foreman closed 

the circuit breaker, thereby energizing the trailing cable, without first: · 

(A) causing the cable plug to be immediately disconnected from its receptacle and 

(B) instructing the section electrician to do the necessary troubleshooting, testing, 

· and repair work on the cable to restore it to a safe condition. The section 

electrician, who was splicing and repairing the cable, was electrocuted. 

(Gov. Ex. 5). The citation was designated as significant and substantial (S&S) and it was noted 

that the hazard caused by the cited condition resulted m a fatality .. Thus, the gravity of the 

violcition was characterized as severe in that a fatality occurred. The degree of negligence 

attributable to Spartan was high and the Secretary attributed the cited violation to an 

unwarrantable failure. The Secretary proposes a civil penalty of$56,000.00 for Citation 

No. 7224652. 

Section 75.1725(a) of the Secretary's regulations provides: 

Mobile and stationary machinery and equipment shall be maintained in safe 

operating condition and machinery or equipment in unsafe condition shall be 

removed from service immediately. 

The thrust of the alleged violative act is Spartan's failure to immediately remove unsafe 

equipment from service. The Commission has held that a mine operator should be charged with 

knowing that equipment was unsafe if a reasonably prudent person, familiar with the factual 

circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the 

mining industry, would recognize a hazard warranting corrective action. Alabama By-Products, 

supra, 4 FMSHRC 2129. Despite Neace and Rainer's description of a standard industry practice 

and company policy of removing an electrical cable from service that has likely been damaged by 

mobile equipment for testing and repair, Spartan failed to do so~ It is obvious that the fact of 

occurrence of this cited violation is demonstrated by the circumstances in this case. 

With respect to negligence, Spartan has been charged with an unwarrantable failure under 

section 104(d) of the Mine Act, 30 U.S.C. § 814(d). The Commission has determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence and 

encompasses conduct characterized as "reckless disregard," "intentional misconduct," 

"indifference," or a "serious lack of reasonable care." Emery Mining Corp., 9 FMSHRC 1997, 

2001, 2003-04 (Dec. 1987); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 

(Feb. 1991); see also Buck Creek Coal, Inc. v.FMSHRC, 52F.3d133, 136 (7th Cir. 1995) 

(approving Commission's unwarrantable failure test). The Commission has recognized that 

whether conduct is "aggravated" in the context of unwarrantable failure is determined by 

considering the facts and circumstances of each case to detetmine if any aggravating or mitigating 

circumstances exist. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'). 

29 FMSHRC 484 
Aggravating factors include the length_ of time that the violati.on has existed, the extent of the. 

violative conditi9n, whether the violation is obvious or possess a high degree of danger, and.the 

operator's knowledge of the existence of the violation. See Consol, 22 FMSHRC at 353. 

-· .· 

Sada knew the cable was struck by the ripper head. Sada also knew that power was lost 

the moment the trailing cable was struck. Just as f;l light switch opens a .circuit and interrupts 

power to a light fixture, Sada knew or should have known that cable damage is manife~t_ by an 

interruption in power to. the continuous miner. Spartan concedes that a damaged electrical cable 

constitutes an extremely hazardous condition. Spartan' s failure under these circumstances to 

immediately remove the ~ontinuous miner from service by-ensuring that the damaged trailing 

cabkremainedlocked out and de-energized constituted a grievous departure from industry safety 

standards. There are no facts that mitigate these aggravating circumstances. fu short, Spartan's. 

conduct was unwarrantable . 

. ,It is apparent tliat Citation No. 7224652 was properly designated a~ S&S in that the failure 

to lock and tag out a damaged distribution cable was the proximate cause of a fatal electrocution 

accident. The contribution of the violation to the fatality reflects the extreme gravity of the cited 

violation. Given the S&S nature of the violation, the extreme gravity, and the unwarrantable 

conduct that resulted in the violation, a civil penalty of $60,000.00 shall be imposed for 

Citation No., 7224652 .. ·

g. 104(d) (1) Order No'. 7228963 - Withdrawal From Working Section 

Order No. 7228963 alleges a violation of the mandatory safety standard in 

section 75.313(a)(3), 30 C.F.R § 75.313(a)(3). The citation states: 

During an unplanned main mine fan stoppage the operator did not w.ithdraw 

everyone from the working section. Air quality bottle samples taken [sic] last 

quarterly inspection results reveal 4320 CFM of methane is being liberated every 

24hours. 

The trailing cable supplying pow:erto the Joy 14CM1015 continuous mining 

machine serial_ number 1408 was, damaged when the ripper head came in contact 

with the trailing cable, mashi.μg the trailing cable between a bit lug and the mine 

floor. This condition caused the mine power to be deenergized at the closure 

switch which supplies electrical power to the entire mine property, which includes 

the preparation plant, mine office facilities, underground mine power and the 

underground mine ventilation fan. 

The section foreman allowed the section el_ectrician and several co-workers to 

perform electrical work on the trailing cable which is located 3 crosscuts inby the 

section dump point in the #3 entry, 20' outby survey station 2462, which is located 

one crosscut outby the pillar line during the power outage to the mine ventilation fan. The 

29 FMSHRC 485 
electrical power [was] restored [at]approximately I :15 p.m. to the Underground mine and mine 

ventilation fan. The electrical circuit breaker thatsupplies power to the trailing cable is energi.Zed 

which results in an electrical fatal accident of the section electrician. who was allowed to work on 

this damaged trailing cable during the fan outage. 

This violation was discovered during the investigation of the fatal electrical 

accident that occurred on February 5, 2004, and it has just been determined that 

this is a non.;.contributing violation. 

(Gov: Ex. 9). The citation was designated as non-significant and substantial (non-S&S) because 

MSHA concluded that the violation did not directly contribute to McNeely's death. The non_;S&S 

designation was also based on the fact that the Ruby Energy Mine did not liberate large quantities 

of methane. It was noted that eight miners were affected by the failure to withdraw from the 

working section. The degree of negligence attributable to Spartan was high and the cited violation 

was attributed to an unwarrantable ·failure. The Secretary proposes a civil penalty of $3, 700.00 

for Order No. 7228963. 

Section 75.313(a)(3) of the Secretary's regulations requires, in pertinent part, that all 

miners must be withdrawn from the working section if a mine fan stops and there is no adequate 

back-up fan system. Section 75.313(c)(l) requires everyone to be withdrawn from the mine to the 

surface if mine ventilation is not restored within 15 minutes. In this case, the parties agree that the 

interruption of mine fan ventilation lasted 14 minutes. · Consequently, section 7 5 .313 required the 

miners to retreat from the working section, although they were not required to evacuate from the 

underground mine. 

The fact of occurrence of the cited violation is readily apparent. There was a 14 minute 

interruption of mine fan ventilation. Although Sada told his crew that they would have to return 

to the surface if ventilation was not restored in 15 minutes, Sada admits that he did not order his 

crew to retreat from the working section at any time during the 14 minute mine fan stoppage. 

(Tr. 567-70). 

With regard to the issue of S&S, it is difficult to understand why the Secretary would 

characterize this violation as one that could not significantly and substantially contribute to the 

cause and effect of a mine safety hazard that is reasonably likely to result in a significant injury. 

As demonstrated by the provisions of the cited mandatory standard, loss of mine ventilation is a 

very serious matter. Methane is not diluted and swept from the working faces. Consequently, any 

ignition source poses an explosive hazard. As evidenced in this case, the loss of ventilation can 

cause a chaotic situation that breeds poor judgement and a lack of due diligence if miners are not 

removed from the working section. If McNeely had been withdrawn from the working section, 

instead of being allowed to repair an electrical cable while mine fan power was lost, he would not 

have been electrocuted. Thus, the Secretary's conclusion that Spartan's failure to withdraw all 

miners from the working section did not contribute to the fatality is surprising. 

29 FMSHRC 486 
However, the Commission's role is adjudication rather than enforcement. The 

Commission does not have the authority to issue or modify citations. Thus, the Commission has 

concluded that its administrative law judges are not authorized to modify the Secretary's non-S&S 

designations on their own initiative. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 819 

(June 1996); Consequently, I am constrained by the Secretary's non-S&S designation. 

Turning to the issue of gravity, the Commission has recognized that the focus on the 

seriousness of a violation is on the effect of the. hazard if it occurs rather than the likelihood of . . . . . . . . . . . . 

injury. Consolidation Coal Company, 18FMSHRC1541, 1550 (Sept.1996)~ Permittjng mine 

operations to c;ontinue during a hazardous period caused by an i~terruption of mine ventilation 

exposes miners to serious or fatal injuries. As previously noted, it enables miners to work 

under abnormal conditions rather th.an waiting for conditions to stabilize before returning to 

normal mining operations. Inthis case eight miners were affected and a fatality occurred. 

Consequently, despite its non-S&S designation, the failure to withdraw from the working 

section was an extremely serious violation. 

Turning to the issue of negligence, Sada knew the mine fan had stopped. Yet, instead of 

ordering miners from the w-0rking section, Sada stood by while Hatfield initially tried to free the 

cable, and, subsequently, while Hatfield and Collins attempted to dislodge the ripper head with 

the scoop. Moreover, at a minimum, Sada knew McNeely remained in the vicinity of the trailing 

cable that was likely damaged. Although Sada advised his crew that they would have to evacuate 

the mine if fan power was not restored within 15 minutes, his failure to withdraw personnel from 

the working section was a reckless disregard of proper safety procedures .. Consequently, the cited 

violation was correctly attributable to Spartan's unwarrantable failure. 

The Commission has. n,oted ~at the de novo assessment of civil penalties does not require 

''that equal weight nim;t be assigned to each of the penalty assessment criteria." Th:under Basin 

Coal Co., 19 FMSHRC 1503 (Sept. 1997). Rather, the judge must qualitatively.analyze each of 

the penalty criteria to determine the appropriate civil penalty to be assessed. Cantera Green, 

22 FMSHRC 616, 625-26 (May 20!)0). Thus; although the violation in Order No . .7228963 has 

been designated as.non-S&S, greater weight must be accorded to the :rp.aterial facts that reflect that 

the cited condition affects the. entire section's personnel, that is indicative of extreme gravity, and 

that it is attributable to unjustifiable and inexcusable conduct. In the fillal.analysis, the Secretary's 

non-S&S designation cannot be allowed to unduly diminish the effects of extreme gravity and · 

unwarrantable conduct that warrant a higher civil penalty. 

Ensuring the rapid and safe withdrawal of miners faced with hazardous conditions is 

fundamental to_ mine safety. A conscious failure to withdraw miners .immediately as a result of an 

interruption of mine fan-ve11tilatioJ}. warrants a significant civil penalty. Likewise the grave nature 

of the violation as well as the fatality that followed justify a substantial penalty.· Although the 

Secretary has designated the violation as non-S&S, the failure to abide by the cited mandatory 

safety standard was not an insignificant violation. Accordingly, a civil penalty of $30,000.00 

shall be assessed for Order No. 7228963. 

29 FMSHRC 487 
h. Approval of Settlement 

At the hearing the parties presented a settlement agreement concerning 104(a) Citation 

No. 7224654 and 104(d)(l) Order No. 7228964. The parties settlement agreement wa5 approved 

on the record. (Tr. 20-23). This citation and order are subjects of Docket No. WEV A 2005.;.53. 

The settlement terms follow. 

The Secretary initially proposed a civil penalty of $60.00 for 104( a) Citation No. 7224654. 

The citation, designated by the Secretary as non-S&S, cited a viOlation of the mandatory safety 

standard in section 75.31 O(b )(1) that requires a mine fan power circuit to operate independent of 

all other mine power circuits. The condition was attributed to a moderate degree of negligence. 

It was abated after the mine fan was .separated from all other mine circuits. ·The parties have 

agreed to a reduced civil penalty of$50.00 in satisfaction of Citation No. 7224654. 

The Secretary initially proposed a civil penalty of $3, 700.00 for 104( d)(l) Order No. 

7228964. The order, designated by the Secretary as non-S&S, cited a violation of the mandatory 

safety standard in section 7 5 .3 I 13(b) that specifies, if mine fan ventilation is restored within 

15 minutes, certified persons must examine for methane in working places before work is 

resumed and before equipment is energized or restarted; The condition wa5 attributed to an 

unwarrantable failure: The parties have agreed to a reduced civil penalty of $2,800.00 in 

satisfaction of Order No. 7228964. 

i. Summary of Liability 

Thus, the total settlement amount is $2,850. 104( d)(l) Order No. 7228963, that was 

assessed a civil penalty of $30;000.00 in this proceeding, is the remaining order in the civil 

penalty proceeding in Docket No. WEVA 2005-53. Spartan's total civil liability for this docketed 

proceeding is $32,850.00. 

The total liability for 104(a) Citation No. 7224651, l04(a) Citation No.7224650 and 

104(d)(l) Citation No. 7224652 that are the subjects of the civil penalty proceeding in 

Docket No. WEVA 2005-34 is $160,000. Thus, the total civil penalty for the six violative -

conditions in issue is $192,850.00. 

ORDER 

ACCORDINGLY, the parties' settlement motion IS GRANTED. Pursuant to the· · 

parties' agreement, Spartan Minirig Company, me., IS ORDERED TO PAY $2,850.00 in 

satisfaction of 104(a) Citation No·. 7224654 and 104(d) (1) Order No. 7228964. ·· 

Consistent with this Decision, ITIS ORDERED that 104(a) Citation Nos. 7224651 and 

7224650, 104(d)(l) Citation No. 7224652, and 104(d)(l)Order No. 7228963 ARE AFFIRMED. 

29 FMSHRC 488 
IT IS FURTHER ORDERED that Spartan Mining Company, Inc., shall pay a total civil 

penalty of $190,000.00 in satisfaction 104(a) Citation Nos. 7224651 and 7224650, 104(d)(l) 

Citation No. 7224652, and 104( d)(l) Order No. 7228963 that were adjudicated in these 

proceedings. 

IT IS FURTHER ORDERED that Spartan Mining Company, Inc., shall pay a total 

civil penalty of$192,850.00 in satisfaction of the six citations and orders that are the subject of 

these contest and civil p~nalty 'proceedings. Payment is to be made to the Mine Safety and Health 

Administration within 40 days of the date of this Decision. Upon timely receipt of payment, the 

captioned contest and civil penalty matters ARE DISMISSED. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard, East, 

P.O. Box 273, Charleston, WV 25321-0273 

Keith E. Bell, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22°d Floor, Arlington, VA 22203 

/mh 

29 FMSHRC 489 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BUZZI UNICEM USA, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BUZZI UNICEM USA, 

Respondent 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-35n /FAX 303-844-5268 

June 6, 2007 

DECISION 

CONTEST PROCEEDINGS 

Docket No. CENT 2006-242-RM 

Citation No. 6204230; 7 /26/2006 

Docket No. CENT 2006-243-RM 

Order No. 6264178; 8/24/2006 

Lone Star Pryor Plant, Mill & Quarry 

Mine Id. 34-01289 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2007-071-M 

A.C. No. 34-01289-102655 

Lone Star Pryor Plant, Mill & Quarry 

Appearances: C. Gregory Ruffennach, Esq., Washington, DC, for Buzzi Unicem USA; 

Thomas A. Paige, Esq., and Matthew P. Sallusti, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, Texas, for the Secretary 

of Labor. 

Before: Judge Manning 

These cases are before me on two notices of contest filed by Buzzi Unicem USA 

("Buzzi") and one petition for assessment of civil penalty filed by the Secretary of Labor, acting 

through the Mine Safety and Health Administration ("MSHA") pursuant to sections 105 and 110 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Acf'). 

Buzzi contested a citation issued under section 104(a) of the Mine Act and an order of 

withdrawal issued by the Secretary under section 104(b} of the Mine Act. An evidentiary hearing 

was held in Pryor, Oklahoma. The parties introduced testimony and documentary evidence and 

filed post-hearing briefs. 

29 FMSHRC 490 
I. BACKGROUND WITH FINDINGS OF FACT 

Buzzi operates Lone Star Plant, Mill & Quarry ("Plant"), an open-pit limestone quarry 

and cement plant, in Mayes County, Oklahoma. As relevant here, mined limestone is processed 

and sent to one.ofthreekilns, which are rotating furnaces used to heat the processed limestone. 

The kilns are contained in long horizontal cylindrical tubes. The kilns rotate at varying speeds 

between 65 to 7 5 revolutions per hour. All three kilns bum coal, gas,. and scrap tires for fuel. A 

two-tiered automatic conveyor syst~1ll ("tire feeder" or "conveyor system~') transfers the tires to · 

the kilns .. The tire feeder consists of eight separate conveyor belts and other dev1.ces that feed the 

tires to the ki~ in coordination with the rotation of the kilns. This system was designed by an 

inciependent contractor, which specializes in the installation of tire feeding systems. The system 

was installed at the plant in 2003 and was expanded in 2004. All moving parts are protected by 

guards, and pull cords are located along the walkway of each conveyor that will: de-energize it. 

MSHA conducted a compliance assistance visit ("CA V") after the system was installed and. . 

another CA V after the system was expanded. 

Tractor trailers deliver the tires to the plant The trailers are tipped to dump out the tires. 

The tires move along a walking floor to a singu~ator, which operates like a coin sorter. This 

singulator places the tires, single file, on theSrrst of eight conveyor belts, which are numbered 

from start to finish. , The conveyors vary in length between 7 and 7 4 feet. All of the tires move , . 

along the first three conveyors. Near the end 9f Conveyor.No. 3, the tires are directed to one of 

the three kilns. Tires going to Kilns 1 or 2 are ejected onto Conveyor No. 4. Next, they travel on 

Conveyor No. 5 to an upper deck. At this level there are four additional conveyors that feed the . 

No. 1and2 kilns via the No. 2 turntable. The tires that remained on the No,:3 conveyor go onto 

the No. 1 turn.table that supplies tires to the No. 3 ki)n. There (!.re slotsjn the rotating kilns and 

the belts are coordinated so that a tire drops into the slot of each kiln about once a minute. 

·The burning of scrap tires was enabled by the. adoption of automation technology, which . 

permits the movement of the conveyors to be synchronized with the rotating kilns. The conveyor 

system is operated automatically using computer technology called the programmable logic 

controller("PLC"). There are slots in the rotating kilns through which tires are dropped about 

once per minute. Buzzi tries to run the plant two shifts per day, 24 hours a day. If the system has 

been shut down, the conveyor operator starts the system from the control room using the 

computer's mouse. The PLC automatically activates an audible alarm. The conveyors start in 

sequence and begin delivering tires to the kilns. Video cameras are positioned throughout the 

conveyor system wi.th monitors in the control room. When the conveyor system is operating, 

individual belts independently cycle on and off as directed by the PLC. Electric eyes are 

positioned throughout the conveyor system that can sense the position of tires in the process. 

The PLC automatically starts and stops individual ~elts based, on the information it receives from 

these electric eyes. During normal production, the three belts at the beginning of the system 

cycle on and off about eight times per minute while the belts on the upper deck at the end of .the 

line cycle on and off less frequently. The longest cycle isapproximately30 seconds. The belts 

29 FMSHRC 491 
start and stop individually as needed to feed tires to the kilns. No audible alarm sounds when 

these belts start during these cycles. 

A miner known as the tire attendant is stationed at the conveyor system to monitor it. 

The tire attendant, who is normally on the ground at the singulator, coordinates with the 

conveyor operator by radio and he acts as the operator's eyes atJ.d ears. One of the jobs of the tire 

attendant is to remove rejects from the conveyor system. Rejected tires are partial tires, usually 

sidewalls. These·rej~ts are typically removed on the first three belts. The proper procedure for 

removing a sidewall is for the tire attendant to de-energize and lock out the belt, remove the · 

guard, and remove the rejected tire. The switch used to de-energize and restart each belt is along 

the side of each conveyor. Tire attendants typically use a long hooked tool to remove the reject. 

The entire length of the conveyor is visible from that belt's control switch. The tire attendant is 

aware that the belts cycle on and off and also knows that a red laser light is emitted by the 

photoelectric eye right before a belt starts. This red·laser light is visible to the tire attendant. 

On July 7, 2006, tire attendant Julie Rogers attempted to remove a reject tire from the No. 

3 belt. Ms. Rogers did not de-energize the belt before attempting to remove the tire. Instead, she 

removed the guard from the head pulley and used the metal hook to remove the sidewall. She 

testified that she saw the red laser light come on but that she tried to get the sidewall with the 

hook before the belt started. (Tr. 356). The conveyor started before she could retrieve the 

sidewall and she suffered severe :friction burns on her arm when the hook got caught in a pinch 

point and pulled her arm into it. The company investigated the accident with the participation of 

Boilermakers Local D4 l 4 ("union"). It was determined that the accident was caused by Ms. 

Rogers' failure to follow proper lockout procedures. Buzzi retrained employees on lock out 

procedures, extended the pull cord at that location, and fabricated a shorter reject puller. 

On July 26, 2006, MSHA Inspector Wesley Hackworth inspected the tire feed conveyor 

system. Buzzi had filed an accident report with MSHA and the inspector was aware of the injury 

suffered by Ms. Rogers. Inspector Hackworth issued a citation alleging a violation of 30 C.F.R. 

§ 56.14105 because proper maintenance procedures were not followed. Inspector Hackworth 

also issued Citation No. 6204230under·section104(a) of the Mine Act alleging a violation of 

section 56.14201(b), as follows: 

The operator did not have a warhing system installed for the 

conveyors at the whole tire system. Once the system is initially 

turned on these conveyors and conveying systems start and stop 

automatically and no warning is given of their startup. This 

condition created a hazard of an employee being injured should the 

conveyors start automatically' without a warning being given. 

Inspector Hackworth determined that an injury was reasonably likely and that any injury resulting 

from the violation was likely to be permanently disabling. He determined that the violation was 

29 FMSHRC 492 
of a significant and substantial nature ("S&S'') and that• Buzzi' s. negligence was moderate. The 

safety standard provides: 

Conveyor start-up warnings 

(a) When the entire lengthor'a conveyor.is visiblefrom the 

starting switch, the conveyor operator shall .visually check to make 

certain that all persons are in the clear before. starting the conveyor; 

(b) When the entire length of the conveyor is not visible 

from the starting switch, a system which provides visible or 

audible warning shall be installed and operated to warnpersons 

that the conveyor will be started. Withip 30 second after the 

warning is given, the conveyor shall be started or a second warning 

shall be given. 

Buzzi started working to abate the condition. The Secretary contends that Buzz~ resisted 

complying with the requirements of the citation and that it tried to abate the violative coQ.dition 

by a mean~that clearly didnot meet therequirements of the safety standard .. Buzzi sought to. · 

install a visual and audible warning system that was not specifically coordinated with the 

movement of the belts. As a consequence, the Secretary issued a section 104(b) order of 

withdrawal on August 24, 2006. The Secretary proposes a penalty of $1,376.00 for the citation 

and order.· 

Buzzi maintains that changing the sys~em to cotnply with the. Secretary's interpretation of 

the standard was a very complicated task because the computer codes had to be changed and the. 

entire conveyor system had to be slowed down. It did not dispute thatit tried several means of . 

compliance but denies that it was not moving forward to comply with the Secretary's 

interpretation of the safety standard. 

II. SUMMARXOF PARTIES' ARGUMENTS 

The Secretary argues that the language of the standard plainly requires a warning 

whenever a conveyor is about to start regardless .of who or what activates the conveyor. The. 

standard's requirements. also apply to multiple conveyor systems and· to conveyors that stop and 

start frequently. She contends that the safety standard does not distinguish between automated 

conveyors, like the tire feeder, and non-automated conveyors, like the other conveyors at Buzzi's 

plant that do provide an audible or visible warning before starting. 

The safety standard does not distinguish 1).etween belts that are started by a computer frotn 

belts that ~e started by humans.· Because the conveyor operator at the Pryor Plant cannot see the/ 

entire belt system from the control room, an alarm sounds when the system is first activated. 

Once the conveyor operator selects "automatic," however, and the PLC assumes control of the 

29 FMSHRC 493 
conveyor systeni, there is no visual or audible warning before each belt starts moving as that belt 

cycles on and of£ The conveyor operator cannot see these belts from the control room. 

The Secretary maintains that neither the text of the standard nor the preamble support 

Buzzi's argument that the tire feeder is exempt from the standard's requirements because the 

belts are automatic and operate without human input. The "protective purposes of the standard 

are tailor made to fit [Buzzi 's] tire Feeder precisely because it is automated: while a human 

being can distinguish between a tire and a human limb (like an arm), the PLC cannot ... make 

that distinction." (S. Br. 10). 

In addition to the plain language of the standard, the Secretary relies on the preamble to 

support her position. She points to the fact that the preamble does not specify the minimum 

amount of time between the warning and the conveyor start-up. The preamble states that 

"sufficient time must be allowed, however, for the affected persons to leave the hazardous area." 

(Ex. PX-15 p. 45; 53 Fed. Reg. 32496, 32514 (Aug. 25, 1988)). She notes that the Secretary 

declined to specifically address multi-conveyor systems in the preamble with the result that the 

rule applies to all belt systems. "Whether a single belt or several belts·are involved in a conveyor 

system, the deciding factor determining whether a visual check or a-warning device is required is 

the ability of the conveyor operator to see the entire length of the conveyor from the starting 

switch." ·Id. 

The Secretary also relies oi1the decision of Commission Judge Hodgdon in Ti/con 

Connecticut, Inc., 18 FMSHRC 90 (Jan. 1996). In that case, the operator used a multiple belt 

conveyor system to transport materials at the site. An alarm sounded when the system was 

started at the beginning of the shift. When a belt was shut down to remove blockage from a rock 

chute, however, an alarm did not sound when it was manually restarted by the operator. A miner 

was seriously injured because he was standing on a belt when it was restarted. 

In Ti/con, the mine operator argued that its safety policies require the person who starts a 

belt after a maintenance procedure to shout out that the belt is about to start. It maintained that 

this procedure met the requirements of the standard; Judge Hodgdon affirmed the violation by 

holding that a "mechanical warning system is required by the standard." Id. at 95. He stated that 

"[ s ]ince the regulation does not specifically state that a mechanical warning system is required, 

this conclusion is reached by evaluating it in light of what a 'reasonably prudent person, familiar 

with the mining industry and the protective purposes of the standard would have provided in 

order to meet the protection intended by the standard.' " Id. · (citation omitted). 

The Secretary argues that a reasonably prudentperson would have recognized that a 

warning must be given every time a belt starts in Buzzi's tire feeding system. In this case, the 

operator provided no warning despite the fact that it provides such warnings at its conventional 

conveyor systems at the plant. The purpose of the standard is to protect miners from being 

injured when belts are started without notice. This underlying purpose cannotbe ignored when 

applying the standard to the tire feeding conveyors. The purpose is to alert people of impending 

29 FMSHRC 494 
belt movement. The Secretary also argues that, ifthe standard.is deemed to be ambiguo~, then 

her interpretation is entitled to deference because her interpretation fits within the terms of the 

standard and is compatible with its purpose. 

Finally, the Secretary maintains that Buzzi W(lS given fair notice of the requirements of 

the safety standard. .The Secretary argues that the plain and clear meaning of the standard 

provided notice. She also relies on language in the Secretary's Program Policy Manual. · 

Buzzi argues MSHA is.attempting to enforce the standard in an illogical manner to 

require that warnings be provided for the aut~matic cycling of conveyors. It contends that the . . . 

plain language of the standard only applies to the manual stopping and starting of conveyors and 

that MSHA's position is totally unreasonable. Section 56.14201 is keyed to whether the length 

of a conveyor is visible to the conveyor op.erator. Thus, th,e standard is designed to apply to the 

manual operation of conveyors because alarms are required only when the operator cannot see_ .. 

the entire length of the conveyor. Indeed, the Secretary's Program Policy Manual ("PPM") states 

that the ''standard requires that no conveyor is started unless the person starting it is certain that .. 

all persons are clear." (B. Br. 15; Ex. PX 7; N MSHA, U.S. Dep't of Labor, Program Policy 

Manual, Part 56 at 62 (2003)). The preamble provides that where the "conveyor operator cannot 

view the entire conveyor length from the starting .switch, a system which provides visible or 

audible warning of the impending conveyor movement is required." (Ex. PX-15, p. 46). Thus, . . 

the.standard was written to apply to situations where a belt is started by a human. Typically, a 

human will start a belt or system of belts at the start of the shift and after a belt has been shut 

down for maintenance. Belts that are stopped and started systematically by a computer are not 

covered by .the safety standard. 

.. 

Under the standard, there can be up to a.30 ... second delay between the warning and 

conveyor motion. Thus, under the regulation, people are given time to get away from the belt 

and they presumably will not forget that the belt will start during that 30-second period. With 

respect to the tire feeder, the belts start and stop automatically as quickly as every 8 seconds and 

at least every 30 seconds. Thus, these belts are constantly stopping and moving again when the 

conveyor system is running and its employees are not going to forget that fact. Everyone who 

works at the conveyor system knows that the belts. continually stop and start whenever the 

conveyor system is operating . 

. Buzzi points out that it was required to slow down its entire tire feeder system to abate 

the citation. Because the belts stop and start so frequently, there was not enough time .to provide 

a meaningful delay between the warning and belt movement. Buzzi had to modify its tire feeder 

system so that there would be at least five seconds between the warning and movement at each 

belt. MSHA has, in effect, enacted a prohibition against Buzzi' s automatic conveyor cycling 

system as a result of its interpretation of the standard. Because this prohibition was neither 

intended nor articulated by the drafters of the standard, MSHA's interpretation is unreasonable. 

The performance of Buzzi' s conveyor system was seriously hindered by the abatement required 

29 FMSHRC 495 
by MSHA's interpretation of the safety standard because this system is closely coordinated with 

the rotation of the kilns. 

Buzzi also argues that the Secretary's interpretation does not advance safety. It initially 

used the system's built-in alarm to comply with the standard.· When the union president 

complained about the constantnoise, Buzzi installed flashing strobe lights. The subject conveyor 

system does not occupy a large area As a consequence, under the Secretary's interpretation of 

the standard, there are .now multiple overlapping warnings given during the automatic cycling of 

the belts. DUring normal production, there are as many as 18 separate warnings per minute on 

just the first three conveyor belts. Employees working in the area soon simply tune out these 

warnings because they are a constant annoyance. 

Next, Buzzi maintains that, assuming the standard applies, the Secretary failed to 

establish a Violation. First, it argues that the applicable "starting switch" referenced in the safety 

standard is the switeh located at each conveyor used to stop and start the belt for maintenance or 

when a reject is removed. In every instance, the tire attendant can see the· entire length of the 

conveyor from that switch. If Ms. Rogers had shut down the belt in aecordance with company 

policy,· she would have manually put it back into operation using the switch at the conveyor and 

she would have been able to see the entire length of the belt from the switch. There are no 

"starting switches" in the control room because the PLC automatically starts and stops the belts. 

The only starting switch in the control room is the switch used to turn the entire system on after it 

has been shut down. 

Buzzi also maintains that its tire feeding system warned persons that the conveyor would 

be started. Ms. Rogers testified that the photoelectric eye system that was installed with the 

conveyors provided an effective warning that the conveyor would be starting. She testified that 

these photoelectric eyes emit a visible red light before the conveyor comes on and that "you can 

see them everywhere." (Tr. 360-61). 

Buzzi also argues that it was not provided with fair notice that the safety standard applied 

to conveyor systems that stop and start on a frequent basis as part of its normal operation. 

"MSHA's attempt to extend [the safety standard] to automatic conveyor cycling, which involves 

neither a 'conveyor operator' nor a 'start-up,' creates an insurmountable fair notice problem· for 

the agency." (B. Br. 24). It maintains that a reasonably prudent person familiar with the mining 

industry and the protective purpose of the standard would riot have recognized that the standard 

applied to the automatic movement of the belts in its tite feeding system. 

29 FMSHRC 496 
A. Summary 

Ill. DISCUSSION WITH FURTHER FINDINGS 

AND CONCLUSIONS OF LAW 

I find that the Secretary did not establish a violation of section 56.14201(b). The 

language of the standard dates back to the regulations promulgated by the U.S. Department of the 

Interior under the old Fe4eral Metal and Nonmetal Mine Safety Act. (See 30 C.F.R. § 56.9-6 

(July 1, 1979)). Although.the wording was slightly different in the prior standard, the 

requirements are the same. Thus, the cited safety standard wasputinto place well before the 

technology at use in the tire feeding system existed. The tire feeder belts start and stop . 

automatically, without human intervention, on a very frequent basis. The standard was not 

written with this type ofsystem in mind. The miners who workon and around the conveyor 

system are well aware that the·belts stop and start on a continual basis. Miners do not need to be 

"warned" that the belts are going to ·start moving, except when the system is started after it has 

been shut down. The conveyor system is constantly operating, so.that as each belt cycles on and 

off, it is not being "started" as that term is used in the safety standard. As discussed below, 

applying section 56.14201(b)to Buzzi's tire conveyor system is misplaced because it creates an 

absurd result and does not improve the safety of miners. 

B. Language oftheSafety Standard and MSHA's Interpretive Materials 

The safety standard was written at a time when computer-controlled conveyor systems 

did not exist in the mining industry. As the preamble states, the standard "addresses the concern 

that persons be clear of conveyors before they are started." (Ex. PX · 15 at 45). Multipleconveyor systems existed at that time.and the preamble states that, whether a single belt or 

multiple belts are involved, the deciding factor in whether a "visual check or a warning device is 

required is the ability of the conveyor operator to see the entire length of the conveyor from the 

starting switch." Jd; Although the standard specifies the, maximum amount of time before a belt 

starts after the warning is given, the preamble states that MSHA did not establish a minimum 

time but that sufficient timemustbe allowed "for affected persons to leave the hazardous area~" 

Id. 

MSHA's PPM allows both manual and automatic alarm systems. (Ex. PX 7). ·Thus, a 

conveyor system can be designed so that one switch activates the warning and then ·automatically 

starts the conveyor(s) within the 30-second time-frame. In the alternative, a conveyor system can 

be designed to require the conveyor operator to switch on the warning, wait the requisite time, 

and then turn another switch to activate the conveyor(s). {Tr. 35, 125). Finally, the PPM 

provides that an audible-''warning must be positive and effective for each conveyor or series of 

conveyors capable of being shut down or started independently within the system." Id. Again, 

this contemplates someone shutting down or starting a system of conveyors or a single conveyor 

within the system. 

29 FMSHRC 497 
Clearly, :lf one of the conveyors in the tire feeding system is shut down and then restarted, 

a warning must be given unless the miner at the switch used to restart the conveyor can see the 

entire length of the conveyor. In this instance, however, I find that the belts are not "started" 

every time they start moving as part of their normal operating cycles. Instead, the belts are 

continuously operating once the system is started up. While it is true that the computer 

repeatedly stops and then resumes movement of the belts in order to feed tires to the rotating 

kilns, the system is operating continuously. The Secretary's reliance on Ti/con is misplaced. In 

that instance, a miner shut down a conveyor for maintenance and then; when he restarted the belt, 

he failed to provide an adequate warning. The miner standing on the belt did not know that 

someone was going to start the belt. On the other hand, at the time Ms. Rogers was injured, she 

knew that the belt was going to automatically start right away. The belts at Buzzi's tire feeding 

system are not "started,"·as that term is used.in the standard, every time they resume movement 

after stopping for less than 30 seconds during their normal operation. ·Tue·tire attendants at the 

plant know that, when the conveyor system is operating, the individual belts constantly stop and 

move again to feed tires to the kilns~ They also know that they arerequired to stay behind the 

guards until they de-energize and lock out the belt. 

C. Plain Meaning and Deference to the Secretary's Inte1pretation 

When the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. See Alcoa Alumina & 

Chemicals, 23 FMSHRC 911, 913 (Jan. 2001) (citations omitted). If, however, a standard is 

ambiguous, I must give special weight to the Secretary's reasonable interpretation of the 

regulation. An "agency's interpretation of its own regulation is .of controlling weight unless it is 

plainly erroneous or inconsistent with the regulation;" Sec '.Y of Labor v. Western-Fuels Utah, 

Inc., 900 E 2d 318, 321 (D.C. Cir. 1990)(citations omitted). 

I find that the language of the standard is not suited to the cycling of the belts in the tire 

feeding system at the plant. It is not clear that the· standard contemplates that the requirement;','to 

warn persons that the conveyor will be started" applies when belts resume movement after. 

stopping for less than 30 seconds during normal operations. The standard clearly applies when 

someone makes an intentional decision to start or restart a belt. Indeed, subsection (b) of the 

standard only applies if the entire length of a conveyor belt is not visible to the person at the 

starting switch.for that belt. In this case, a computer program controls the movement of the belts 

based on information it receives from the electric eyes located throughout the conveyor system. 

It is worth noting that the conventional conveyor systems at Buzzi' s plant are equipped with 

devices that warn miners when a belt or belts are starting, if the entire length of the conveyor is 

not visible from the starting switch. Thus, Buzzi was aware .of the requirements of the standard 

and Buzzi's management did not believe that the standard applied to the tire feeding system. 

The Secretary argues that her interpretation is reasonable and that I owe deference to her 

interpretation. In this case, I find that the Secretary's application of the standard to the tire 

29 FMSHRC 498 
feeding conveyor system is inconsistent wi_th .the language of the standard and that herinterpretation does not serve a "permissible regulatory function~" Gen. Elec. Co. v. EPA, 53 F.3d 

1324, 1327 (D.C. Cir. 1995) (citations omitted) .. Her iI;J.terpretation is not consistent with the 

language of the standard because the standard presupposes the intentional act of starting a 

conveyor. Here, once the conveyor system is started, the belts stop and move automatically on - -

very short intervals. This fact is known by miners who work in and around the tire feeding 

system, so they are not at all surprised by the frequent cycling of th<;:_ belts. There has been no 

showing that providing extra warnings on a virtually continual basis would improve the safety of 

miners-or reduce the risk of an accident. 

The Secretary's witnesses stretched the meaning of the standard and MSHA's interpretive 

material to support MSHA's interpretation of the standard. Fred Gatewood, a staff assistant to 

the district manager who is on detail as the assistant district manager for the South Central 

region, testified-with respect to the application of the standard to Buzzi's tire feeding conveyors. 

He referred to the sentence in the PPM which states that the standard '_'has been unifonnly 

interpreted by MSHA and its predecessor organizations to include both automatic and manual 

alarm systems" to support MSHA position, When he was questioned whether that sentence 

referred to automatic alarm-systems rather than automatic conveyor systems, he replied that it 

could refer to both. (Tr. 207). He testified that this sentence in the PPM makes clear that the 

"standard applies to every conveyor or series of conveyors, whether it's automatic, automated, or 

manual." (Tr. 207). I find Mr. Gatewood's interpretation oftli.e PPM to be absurd.apd 

completely unreasonable. The cited language quite obviously provides that MSHA and its 

predecessors have always allowed mine operators to use automatic and manually operated alarm 

systems to comply with the safety standard's warning requirement. The PPM does not even 

obliqueJy address conveyor systems th~t stop and move automatically as directed by a 

computerized operating system. 

The Secretary failed to prove that Buzzi' s tire feeding system presented <l hazard in need _ 

of correction. Ms. Rogers testified that she kn_ ew that the, belt was about to start when she ' ··'. . . 

reached over with a tool to pick up a reject tire. She saw the red laser light flash. She admitted 

that she took a short-cut and tried to race the belt. Her actions are akin to someone driving over 

a railroad grade crossing when a train is rapidly approaching. The person dri_ving the car is well 

aware of the oncoming train but he thinks he can beat it. If an audible or visible warning had 

been given before the belt moved in this instance, Ms. Rogers would not havebad any greater 

knowledge of the impeding movement than she already did. She knew that the belt would move . . . ·. . ~. 

again because of her knowledge of the design of the conveyor system and the fact that the laser 

light came on. 1 If an individual belt is shut down and locked out before a miner removes the 

1 I recognize that the issue in this case is whether Buzzi violated section 56.14201 and not 

whether the alleged violation contribute(! to Ms. Roger's accident. Nevertheless, it is clear to me that 

the warning that the Secretary seeks would not have averted this accident because Ms. Rogers knew 

that the belt was about to move again. Likewise, other tire handlers would have the same kliow ledge 

assuming they were properly trained. The Secretary has not shown how a visible or audible warning 

29 FMSHRC 499 
guard for the belt, there is no chance that the miner will be injured by the movement of the belt. 

(Tr. 82). That is the procedure required by Buzzi and Ms. Rogers had the means to lock out the 

belt. The switch for the belt was located but a·few steps from where she was standing when she 

attempted to remove the sidewall. If she had shut down the belt to remove the sidewall, the 

requirements of section 56.14201 would have applied when she restarted the belt. 

It is significant that the tire feeding system has been inspected by MSHA on several 

occasions while it was in operation and no citations have been issued. (Tr. 357). Indeed, the 

conveyor system was inspected in January 2006. It was also subjected to two CA Vs and no 

suggestions were made that additional warnings were required. (Tr. 89-94). At least part of the 

tire feeder was operating during the CA V on April 28, 2004. (Tr. 94). Although itwas obvious 

that no visible or audible warnings were given during the automatic cycling of the conveyors, no 

MSHA inspector suggested that such warnings were required. It also appears that as of the date 

the citation was issued, there had been no prior enforcement of section 56.14201 in thismanner 

at other cement plants. Buzzi established that other limestone and cement plants use similar 

conveyor systems to feed tires into kilns without providing audible or visible warnings when 

belts automatically stop and start. The present case appears to be one of first impression. 

D. Abatement of the Cited Condition and the Safety of Miners 

Buzzi first attempted to abate the citation by reprogramming the conveyor's alarm system 

to go off at 30-second intervals. Buzzi also installed signs at each belt that warned miners that 

the belt could start at any time. Miners complained that they were going home every day with 

severe headaches because of the constant alarms. The uriioil president intervened on their behalf 

by sending a letter to the MSHA district manager. In this letter, the uriion president stated his 

position that Buzzi had been complying with the requirements of section 56.14201 before the 

citation was issued. (Ex. PX6, p. 40). He testified that the tire feeding system was completely 

safe before Inspector Hackworth issued the citation. (Tr. 365). He said that the :frequent alarms 

irritate people working in the area. Id. ·He then states: 

Id. 

While the Boilermakers wholeheartedly support effective safety 

and health programs, we feel that the audible alarm going off every 

30 seconds offers nothing in the way of safety. In fact, as an 

irritant, it could become a safety hazard in that our people may 

begin to ignore warning alarms. Therefore, we recommend the 

audible alarm be reprogrammed back to its original startup setting. 

After this letter was received, MSHA started advising Buzzi that flashing lights may be a 

better solution. Buzzi attempted to abate the citation by installing strobe lights that constantly 

flash at each belt. MSHA would not accept this method to abate the citation because the flashing 

will improve the safety of miners. 

29 FMSHRC 500 
of the lights were not coordinated with the movement of the belts. Buzzimanagement did not 

initially believe that the program logic in the PLC could be modified to time the flashing of lights 

with the movement of the belts. (Tr. 65, 68). The plant manager told MSHA inspectors that 

Buzzi had tried to modify the system to comply with MSHA's abatement requirementbut that it 

would not work right. Buzzi' s electrical supervisor told MSHA Inspector Dana White on August 

23, 2006, that he had been working on it but that there was a problem ramping 1,lP the voltage 

because the belts only operate for a few seconds and then they stop for five to six seconds. (Tr. 

71; Ex. PX 6 p. 25). 

On August 24, 2006, Brian Goepfert, MSHA's Field Office Supervisor, visited the plant. 

The section 104(b) order was issued at the c<;mclusion of his meeting with mine management. 

MSHA did not believe that the company wasmaking.sufficient progress to abate the cited 

condition. Buzzi had to modify its conveyor system in order to abate the citation. MSHA 

determined that the warning had to provide. at least a five second delay between the start of the 

warnfu.g and the movement of the belt. In order to achieve this result, Buzzi had to slow down 

the cycling of the belts, which reduced the efficiency of its tire burning system. Buzzi hired a 

consultant to change the computer codes in the .PLC in order to achieve abatement of the order of 

withdrawal. 

' The order was terminatc;:d on October 12, 2006, afl;erBuzzi installed lights that flash five 

seconds before each belt begins to move as it cycles. A five second gap betw~en a visible 

warning and belt mov:e;ment is extremely short and its utility is doubtful. After this condition 

was abated, MSHA started issuing citations to other cement plants.with tire feeding systems 

similar to Buzzi's. Inspector White testified that each of these plants were able to abate the 

condition within about 30 days. (Tr. 77). 

Because the entire conveyor system is in a relatively small area, the warnings are quite 

frequent and overlap from belt to belt. 2 Not only does this cause miners to simply ignore the 

warnings, it is also likely to be confusing. I credit Buzzi's evidence that the warning lights are 

required to flash up to 18 times per minute along the first three belts to comply with MSHA' s 

interpretation. of the safety standard. As a consequence, there is a good chance that the abatement 

required by MSHA actually contributes to a mine safety hazard. The flashing strobe lights had to. 

be bright enough to be seen in the daytime. The record makes clear that at night the tire handlers 

are frequently temporarily blinded by these lights because they are flashing virtually constantly in 

the vicinity of the first three conveyors. (Tr. 296, 369). Although the tire handlers spend most of 

their time on the ground near the singulator, they do walk along the walkways for the first three 

belts to remove rejects from time to time. If audible. alarms had. been installed, the noise level 

likely would have been intolerable to miners in the area. I find that the evidence fails to support 

the Secretary's position that the warnings she believes are m~dated by the safety standard has 

2 The first three .belts are immediately adjacent to each other and the sirigulator. (Ex. PX-3 

p. 4). Belt No. 1 is about 12 feet long, Belt No'. 2 is about 8 feet long, and Belt No. 3 is about 62 feet 

long. (Ex. PX-6 p. 45). 

29 FMSHRC 501 
improved the safety of miners at the plant. Her interpretation of section 56.14201 has created an 

absurd situation at the plant that does not advance the safety of miners. 3 

E. Fait Notice of the Requirements of the Safety Standard·· 

The Secretary must provide fair notice of the requirements of a broadly written safety 

standard. Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products 

Corp., 4 FMSHRC 2128, 2130 (December 1992). Such broadly written standards must afford 

notice of what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). In 

"order to afford adequate notice and pass constitutional muster, a mandatory safety standard 

cannot be 'so incomplete, vague, indefinite, or uncertain that [persons] of common intelligence 

must necessarily guess at its meaning and differ as to its applieation.' "Ideal Cement Co.; 12 · 

FMSHRC 2409, 2416 (November 1990)(citation omitted). A standard must "give a person of 

ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343(September1991). 

When faced with a challenge that a safety standard failed to · 

provide adequate notice of prohibited or required conduct, the 

Commission has applied an objective standard, i.e., the reasonably 

prudent person test. ·The Commission recently summarized this 

test as ''whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the standard would 

. have recognized the specific prohibition or requirement of the 

standard." 

Id. (citations omitted). "The Secretary, as enforcer of the Act, has the responsibility to state with 

ascertainable certainty what is meant by the standard he has promulgated." Diamond Roofing 

Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). 

The Commission recently addressed this issue in Alan Lee Good d/b/a Good 

Construction, 23 FMSHRC 995 (Sept. 2001) ("Good Construction"). Although it was a split 

decision, the analysis to be used is sunimarized in the opinion of Commissioners Jordan and 

Beatty, as follows: · 

In applying the reasonably prudent person standard to a 

notice question, the Commission has taken into accoilnt a wide 

variety of factors, including the text of a regulation, its placement 

in the overall enforcement scheme, its regulatory history, the 

consistency of the agency's enforcement, and whether MSHA has 

3 The Secretary should consider promulgating a new safety standard for conveyor systems 

that automatically stop and move in short cycles. The advantage of this approach is that the agency 

will be able to consider the comments of labor and industry. · 

29 FMSHRC 502 
published _notices.informing the regulated community with 

'.'ascertainable certainty" of its interpretation of the standard in 

qu,estiqn. Also relevant.is the testimony of the inspector and the 

operator's employees as to whether the practices affected safety .. 

Finally, we have looked to accepted safety standards in the field, 

considerations unique to the miningindustr)i, and the .. 

circumstances at the operator's mine. 

23 FMSHRC 1005 (citations and footnote omitted). 

I find that the. Secretary did not provide fair notice that she would start interpreting 

section 56. 154201 t() apply to the automatic movement of conveyor systems like the one in place 

at Buzzi's plant. Neither the language of the safety standard nor MSHA's interpretive materials. 

gave notice that conveyor systems that stop and move automa,tically eight times a millrite are · . 

required to have visible or audible warnings every time the belt moves. My factual findings set 

forth above are equally applicable to this issue. ·· · ' 

The Secretary also relies on other informatio11 avaiiable to mine operators: Mr. Gatewood 

testified about an article he wrote in MSHA's South Central District Newsletter. (Tr. 192). This 

article was also published at MSHA' s website. Mr. Gatewood testified that this article provided 

notice to mine operators that automatic conveyor systems, like the one cited at Buzzi's plartt; are·. 

required to provide a visual or audible warning every time a belt moved. (Tr.' 211-14). .· · · 

Specifically, he stated that the following question provides such notice: "Is the system flexible 

enough to provide a warning when restarting only a portion of the plant during the shift?" ·(Ti. 

212-13; Ex. PX 10). I find that this question does not provide the notice that Gatewood 

prescribes to it. Both parties agree that if a belt is shut down during a shift, a warning must be 

given when it is restarted if the entire belt is not visible from the starting switch. The question 

Gatewood refers to concerns the situation described iri Ti/con. If a belt is taken out of production 

for maintenance, a waining must be given before the belt is restarted. Miners need to be given a 

warning whenever a belt is started after it has been shut.down. The belts in the tire feeding 

system at Buzzi's plant, on the other hand, repeatedly stop and then resume movement within 

seconds throughout the shift while the conveyor system is. in production. This cycling of the 

belts at Buzzi's plant bears no resemblance to the situation contemplated in Mr. Gatew~od;s 

article or under thefacts in Ti/con. · 

' ,. ' 

I find that a reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would not have recognized that a visible or audible warning 

was required every time a belt in the tire feeding system starts moving again during.the nonn31 . 

cycling of the conveyors. The text of the safety standard, its placement in the overall · 

enforcement scheme, and its regulatory history do not provide the requisite notice. The Secretary 

has also not published notices informing the regulated community with "ascertainable certainty" 

of the interpretation of the standard that she presented in this case. Since this appears to be the 

:first.time that MSHA has issued a citation for this.type of conveyor system, there has not been 

29 FMSHRC 503 
consistent enforcement of section 56'.14201 in this manner. Indeed, several MSHA inspectors 

observed the tire feeder in operation prior to July 2006 without commenting that a warning 

system was required. In addition, a number of other cement plants in the United States have tire 

feeding systems similar to Buzzi' s. The evidence shows that the operators of these plants have 

not been required to install visual or audible warnings for their automated conveyor systems that 

activate whenever a belt starts moving. {Tr. 297, 370, 385-87, Ex. C-19) 

F. Conclusions 

I find that Citation No. 6204230 should be vacated because the Secretary did not establish 

that section,56.14201 applies to the automatic cycling ofthe belts in Buzzi's tire feeding 

conveyor system. The language of the standard and MSHA's interpretive materials do not 

support the Secretary's position that the standard applies to the automatic cycling of belts. In 

addition, I find that the Secretary's interpretation is not reasonable and it leads to absurd results. 

Having either lights flashing or alamis sounding on a virtually constant basis around the first 

three belts of the tire feeding system would not increase safety, as the union president makes 

clear, and may well result in a diminution of safety. It is important to understand that my 

conclusion in this regard was influenced by the fact that the belts stop and then resume 

movement on a very frequent basis. The belts that are closest to the duty station of tire attendants 

indep,endently stop and move again about eight times a minute while the other belts cycle at 

various rates with the slowest' being twice a minute. If a conveyor system has beits that 

automatically stop and start again every ten minutes, for example, a different analysis may be 

required. 

It is also important to note that the only tire attendant who testified at the hearing stated 

that she knows when the belt is about to start. She knows that the belt will· start by the location 

of the tires on the belts and, more importantly, she can see the electric eye activate before the belt 

starts.4 An additional warning would not serve the same safety function as a warning given · 

before a belt is restarted after being shut down for maintenance as in Tilcon. 

I also find that, even if the standard applies to the automatic movement of the belts, the 

citation should be vacated because fair notice was not provided to the mining community that the 

Secretary would be applying the requirements of section 56.14201 to such movement. The 

standard and MSHA's interpretive materials do not address the issue. Various MSHA inspector8 

had observed the tire feeding system at the Pryor Plant without indicating that a warning system 

was required. In addition, no other limestone quarry or cement plant that used automatic tire 

feeding systems had ever been warned, prior to July 2006, that they were in violation of the 

safety standard. 

4 !reject Buzii's argument that the activation_ofthe electric eye serves as a visible warning, 

as that term is used in the safety standard. There simply is not enough evidence in the record to 

support its position on the issue. 

29 FMSHRC 504 
Because I have vacated Citation No. 6204230, Order of Withdrawal No. 6264178 issued 

under section 104(b) of the Act, is also vacated as moot. 

IV~ ORDER 

For the reasoris set forth above, Citation No. 6204230 and 0rder No. 6264178 :are hereby 

VACATED and these proceedings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

C. Gregory Ruffennach, Esq., 1717 K: Street, NW, Suite 600, Washington, DC 20036 (Certified 

Mail) 

Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202-5036 (Certified Mail) · 

RWM 

29 FMSHRC 505 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

June 18, 2007 

BELL COUNTY COAL CORPORATION, · 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 2004-317-R 

Citation No. 7538674; 08/18/2004 

Docket No. KENT 2004-318-R 

Citation No. 7538675;08/18/2004 

Docket No. KENT 2004-319-R 

Citation No. 7538676;08/l 8/2004 

Docket No. KENT 2004-320-R 

Citation No. 7538677;08119/2004 

Docket No. KENT 2004-321-R 

Citation No. 7538679;08/l 9/2004 

Docket No. KENT 2004-322-R 

Citation No. 7538680;08/19/2004 

Docket No. KENT 2004-323-R 

Citation No. 7524384;08/17 /2004 

Docket No. KENT 2004-324-R 

Order No. 7538681;08/19/2004 

Docket No. KENT 2004-325-R 

Order No. 7538678;09/19/2004 

Docket No. KENT 2004-326-R 

Order No. 7524383;08/l 7/2004 

Coal Creek 

Mine ID 15-18058 

29 FMSHRC 506 
SECRETARY OF.LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), . 

Petitioner 

v. 

CNIL PENALTY PROCEEDINGS 

Docket No. KENT 2005-46 

A.C. No. 15-18058-40625 

Docket No .. KENT 2005.,.264 

A.C..No. i5-18058-45668 

BELL COUNTY COAL CORPORATION, 

Respondent Coal Creek Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND JfEJ\LTH . 

ADMINISTRA1JON (MSHA), . 

Petitioner 

v. 

CRAIG DA VIS, DARRYL-BAILEY, 

JERRY D. BELCHER, JIMMY 

MURRAY and DONNIE WRIGHT, 

Respondent~ 

CNIL PENALTY PROCEEDINGS 

Docket No. KENT 2005-401 

A.C. No. 15-18058-63530A 

Docket No. KENT 2005-402 

A.C. No. 15-.18058-63528A 

Docket No. KENT 2005-409 

A.C. No. 15-18058-63529A 

Docket No. KENT 2005-411 

A.C. No. 1~-J~OS8-63531A 

Docket No. KENT 2005-416 

A.C. No . .15-18058-63532A 

DECISION 

Appearances: Marybeth Zamer Bemui, Esq., Mary Sue Taylor, Esq., Office of the Solicitor,· 

U.S. Department of Labor, Nashville, Tennessee, on behalf of the Secretary of 

Labor; 

Melanie J. Kilpatrick, Esq., Rajkovich, WiHi;inis" Kilpatrick & True, PLLC, 

Lexington, Kentμcky, on behalf of Bell County Coal Corporation, Jimmy Murray 

and Donnie Wright; .· 

Charles E. Ricketts, Jr., Esq., Ricketts & Platt, PLLG, Louisville, Kentucky, on 

behalf of Craig Davis, Darryl Bailey and Jerry D. Belcher ..... 

Before: Judge Zielinski 

These cases are before me on Notices of Contest and Petitions for Assessment of Civil 

Penalties filed by the Secretary of Labor ("Secretary"), pursuant to sections 105 and 110 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 ("Act"). The petitions allege that 

29 FMSHRC 507 
Bell County Coal Corporation (''Bell County") is liable for 11 violations of the Secretary's 

regulations applicable to underground coal mines, and propose the imposition of civil penalties 

totaling $153,836.00. One Notice of Contest involves Bell County's contest of an imminent 

danger order. Petitions were also filed against five supervisors at the mine, alleging that they are 

each personally liable for two of the violations, and seeking the imposition of civil penalties 

against them in their individual·capacities. Several of the alleged violations, for which 

substantial penalties are sought, are the outgrowth of an investigation of a massive roof fall at 

Bell County's Coal Creek mine, that occurred on June 16, 2004, and resulted in a fatal injury to a 

miner. 

A·hearing was held in London, Kentucky. Prior to the hearing, Bell County was 

permitted to withdraw its contest of four of the alleged violations and proposed penalties. At the 

close of the evidence, the citations as to individual Respondents Donnie Wright, the mine 

superintendent, and Jimmy Murray, the mine foreman, were vacated. The remaining parties filed 

briefs after receipt of the transcript. For the reasons set forth below, four of the alleged violations 

and the imminent danger order are vacated, and I find that Bell County committed three of the 

alleged violations and impose civil penalties totaling $6,900.00. I also find that the three section 

foremen are each liable for one violation, and impose civil penalties in the amount of $200.00 

against each of them. 

Findings ofFact- Conclusions of Law 

Bell County Coal operated the Coal Creek mine, which was located near Middlesboro, 

Kentucky. The mine was accessed by five drift openings into the 60-inch thick Buckeye Springs 

coal seam, and had been producing coal since October, 1998. Coal was produced using the room 

and pillar method, and remote controlled continuous mining machines. The mine employed 42 

underground and two surface workers. In addition, four surface and two underground contract 

workers were employed. Coal was produced on the 004/003 MMU super-section, essentially two 

four-entry sections operating side-by-side. The 004 MMU mined the Nos. 1through4 entries 

and the 003 MMU mined the Nos. 5 through 8 entries. 

On June 16, 2004, retreat mining was being performed on the sections. The area which 

was being mined had been driven oh ·advance a few weeks earlier; The second shift foreman was 

Jerry D. Belcher. Upon arriving on the section, Belcher traveled across the pillar line to conduct 

an examination. He noticed cracks or joints in the roof in the #5 entry, which he later referred to 

as seams. Ex. G-24. 1 He checked test holes, which indicated no separations in the roof, and felt 

that the joints did not pose a hazard. He had concerns about other aspects of the roof, and 

warned the crew to watch the roof and move out if anything out of the ordinary happened. David 

Scott Goins, the continuous miner operator, took one cut from the pillar on the right side of the 

entry, and pulled back so that timbers could be set. Belcher then left and went over to the 004 

1 The Secretary's exhibits are designated "G-#," and Respondent's exhibits are 

designated "R-#." 

29 FMSHRC 508 
section. Timbers were being setby James Ford and Donnie Lemarr, with the help of Edwin 

Pennington, a shuttle car operator, whose equipment had broken down. 

Pennington, a contract worker, had brought a video camera into the mine in his lunchbox. 

He intended to record a roof fall to show his wife. He began recording after a cut had been taken 

from the left pillar in the #5 entry. Lemarr noticed a crack in the roof in a crosscut to the left of 

the #5 entry. He did not think it posed any immediate danger because it ran into and was 

supported by the pillars .. Tr. I 07. He inserted some cap wedges into the opening, to monitor any 

movement. If the wedges had dropped out, he would have watc}le(} the top more closely and 

pulled out of the entry faster; Tr. 66-67. The videotape, which was recovered after the accident, 

shows that some of the timbers set further inby had taken weight and were bent .and/or broken. 

The miners talked about "slips" in the roof, referring to cracks or joints, and speculated that the 

roof would fall up to the timbers, or even further outby through the crosscut intersection. 

Ex. G-2 (6:54 p.m.). 

After taking the third cut, the roof started ''working" and the continuous miner operator, 

Goins, decided to back the: miner outby to the crosscut. . The top continued to work, with small 

pieces of rock falling from the roof. The miner was then moved back to the ,next crosscut 

intersection. Tr. 69. The crew moved ba,ck near the miner to watch the roof The roof in the 

#5 entry then fell. The fall apparently started near the pillar line and proceeded more than 

200 feet out the #5 entry. Pennington shouted "her:e it comes," andhe and Lemarr started 

running. Tr. 71. Lemarr, who was six-to-eight feet in front of Pennington, made it around the 

comer into the next crosscut. Pennington did not. He was struck and kiiled by the falling rock. 

The roof fall was massive. It ranged from four to more than six feet thick, 12 to 20 feet in width 

and approximately 210 feet in length, running.from the cave point at the pillar line up the 

#5 entry for more than two breaks. Ex. G-11 at l, 6. 

State and federal officials immediately commenced recovery efforts, and assembled 

investigation teams. MSHA concluded that the roof fell between two parallel joints that ran up 

the #5 entry, that the joints were "hillseams," and that they had not been supported as required by 

Bell County's Roof Control Plan. MSHA also determined that there were other hillseams in the 

area that had not been identified or properly supported. Citations and orders were issued for 

those and related alleged violations, and for alleged violations for the use ofnonpermissible 

electrical equipment within 150 feet offl.ie·pillar line. In addition to citing Bell County, the .· 

Secretary also assessed proposed civilpenalties against five individual managers for two ofthe 

alleged violations, pursuant to section l lO(c) of the Act. Mine superintendent Wright, mine 

foreman Murray, and three section foremen, Craig Davis, Darryl Bailey and Belcher, are alleged 

to have knowingly authorized the violations alleged in Citation Nos. 7538674 (failure to comply 

with the Roof Contt;ol Plan with respect to hillseams in the #5 entry), and 7538678 (use of a 

nonpermissible chain saw within 150 feet of the active pillar line). 

29 FMSHRC 509 
Part I - Violations Related to the Fatality2 

MSHA's Report of Investigation of the June 16 fatal roof fall accident was issued on 

August 17, 2004. Ex. G-11. The violations related to the fatality were issued on August 18 and 

19, 2004. 

Citation No. 7538674 

Citation No. 7538674 was issued on August 18, 2004, pursuant to section 104(d)(l}of 

the Act, and alleges a violation of30 C.F.R. § 75.220(a)(l);, which requires that mine operators 

"develop and follow a Roof Control Plan, approved by the [MSHA] District Manager that is 

suitable to the prevailing geological conditions, and the mining system to be used at the mine." 

The violation is described in the "Condition or Practice" section of the citation as follows: 

An investigation of the fatal fall of roof accident which occurred on June 16, 

2004, determined that the approved Roof Control Plan, dated June 6, 2001, was 

not being complied with in the No. 5 entry on the 003 MMl.1. The roof fall ranged 

from 4 to 6+ feet-Jn thickness, 12 to 20 feet in width, and approximately 210 feet 

in length from the pillar gob line. Parallel hillseams (vertical open joints) were 

present in the roof of the No. 5 entry that was supported during development with 

thin steel straps. The approved plan required that hillseams be supported with · 

steel channels and the entry width.be narrowed to 18 feet or less. Other hillseams 

were supported with thin steel straps which were present at various locations on 

the 004/003 MMU supersection. Additional safety precautions for retreat mining 

(pillaring) as stipulated in the plan also require that a roof evaluation·shall be 

made when entering a previously mined area for the purpose of pillar recovery. 

When inadequate roof support is encountered the necessary corrective action shall 

be taken.3 

Ex. G-6. 

MSHA determined that the fatal accident occurred as a result of the violation, that it was 

significant and substantial, that one employee was affected and that the operator's negligence . 

was high. As noted above, the citation was issued pursilimt to section 104( d) of the Act, because 

it is alleged that the violation was the result of Bell County's unwarrantable failure to comply 

with the regulation. A civil penalty in the amount of $58,000.00 has been proposed for this 

2 The hearing was conducted in two parts. Part I involved Bell County and the 

individual Respondents, and addressed violations related ·to the fatality. Part II involved only · 

Bell County, and alleged violations that were issued during a subsequent inspection and are not 

related to the fatality. 

3 Text taken from citations and orders has been edited to correct spelling, punctuation 

and other errors. 

29 FMSHRC 510 
violation. 

The Violation 

In order to prove a violation of a mine plan provision, the Secretary: 

must first establish that the provision allegedly violated is part of the approved 

and adopted plan. Jim Walter Resourc~s, Inc., 9 FMSHRC 903, 907(May1987). 

She must th~ prove that the cited condition or practice violated the provision. Id. 

When a plan.provision is ambiguous, the Secretary may establish the meaning 

intended by the parties by presenting credible evidence as to the history and 

purpose of the provision, or evidence of consistent enforcement. Id. 

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998). This standard recognizes 

that due process entitles an operator to fair notice of the Secretary's interpretation of plan 

provisions. Energy West Mining Co., 17 FMSHRC 1313, ,1317-18 .(Aμg. 1995). "The ultimate 

goal of the [plan] approval and adoption process is a mine-specific plan with provisions 

understood by both the Secretary and the operator and with which they are in full accord. . . . . 

'[A]fter a plan has been implemented (having gone through the adoption/approval process) it 

should not be presumed lightly that terms in the plan do not have an, agreed upon meaning:"' 

Jim Walter, 9 FMSHRC at 907 (quoting from Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 . 

(Dec. 1981)), 

The Secretary established that the plan provisions referenced in the citation were included. 

in Bell County's approved Roof Control Plan at the time of the ac;cident. It required that "pots, 

slips, horsebacks or hillseams" be supported eith~:r with crossbars. and posts, or steel channels 

installed with roof bolts, if the roof structure provided adequate anchorag~ for roof bolts.4 

Ex. G-10 at 5. It also provided that, where "subnormal roof conditions" were encountered, 

entries would be narrowed to 18 feet or less, which could be accomplished by mining entries less 

than the normally allowed 20-foot width or by setting posts or cribs on five-foot centers along an 

entry that had been mined wider than 18 feet. Ex. G-10 at 5. 

MSH.A's Report of Investigation of the accident explains that the roof fell between "near 

vertical joint systems." Ex. G-11 at 6. That much does not. appear to be in dispute. What is 

disputed is whether those joints or joint systems were hillseams and/or whether they shoul~ _have 

been recognized as hillseams prior to the accident. For the sake of clarity, the subject 

imperfections in the roof wi}lbe refen:ed to herein as ''joints." It is undisputed that the joints in 

4 Steel channels are made of3/16 inch thick material, bent to form roughly a "U" shaped 

beam approximately five inches wide and two inches deep. They are typically about four feet 

long, with pre-drilled holes for roof ~olts at each end. Bell County also used thin steel straps, 

made of 16-g~mge material, also about four feet long and pre-drilled. The Roof Control Plan 

provided that straps were to be used "foi:: the sole purpose of controlling 'draw rock' or smalJ 

isolated pots." Ex. G-10 at 5. 

29 FMSHRC 511 
the roof of the #5 entry, between which the roof fall occurred, had not been supported with 

beams or steel channels, and the width of the entry had not been reduced to 18 feet. 5 

Consequently, the question of whether the plan was violated turns on whether the joints were 

hillseams. 6 The Secretary contends that the joints were obvious hillseams. Bell County contends 

that the joints were not hillseams~ and thatMSHA's definition of the term "hillseam" changed 

dramatically after the accident. 

The term "hillseam" is not defined in the Roof Control Plan, or in the· Secretary's . 

regulations. Nor does the American Geological Institute's Dictionary of Mining Mineral and 

Related Terms (2d ed. 1997) contain a definition. It is a term used by eastern Kentucky miners to 

describe a certain type of joint found in thatregion.7 Despite the absence of an authoritative 

written definition, it appears that prior to the accident, Bell County and MSHA were in 

agreement on what was meant by the term. 

Bell County's senior managers, who had extensive mining experience in the region, 

understood a hillseant to bea vertical weathered joint, near a coalbed outcrop, that had mud, 

water or some form of material that is not native to the strata of the top imbedded in it. Mine 

superintendent Wright, who had 33 years of mining experience, testified that a hillseam was an 

opening that ''universally" had "mud or water, or some combination of both, or some form of 

material that's not that native to the strata of the top, embedded in it." Tr. 633, 702. He further 

explained that hillseams were encountered close to the outcrop and under low cover. Tr. 634. 

Mine foreman Murray, with over 25 years of experience, testified that hillseams were "mud, 

water, displacement, foreign material not of your normal roof conditions." Tr. 754. He 

explained that hillseams had been encountered near the outcropin another section of the mine, 

and they were supported with Heintzmann Beams, which are superior to wooden crossbeams. 

Tr. 754. Pictures of one such hillseam, an obviously weathered joint, were introduced by 

Respondent. Ex. R-26, R-27, R-28, R-29. 

5 Straps had been installed in many areas in the vicinity of the accident. Several 

photographs depict straps running from roof bolt to roof bolt apparently across the width of the 

entry and into adjoining crosscuts. Ex. G-3 at 2, 16-19, G-16, G-20. Some of the straps spaimed 

the joints involved in the roof fall. · 

6 No party contends that the joints were pots, slips· or horsebacks, which Cox described 

as isolated formations in a mine roo£ Tr. 4 73-7 4. 

7 The term has arisen infrequently in Coinmission litigation. See Gilbert v. •Sandy Fork 

Mining Co., 9 FMSHRC 1327, 1329 n.2 (Aug. 1987) ("A 'hill seam' is a crack or fault in a mine. 

roofthat generally has mud or water emanating from it."); Shamrock Coal Co., 5 FMSHRC845, 

847 n: 3(May1983) (''There was some disagreement at the hearing a5 to the exact definition of a 

'hillseam.' Everyone agreed that, basically, it is a crack in the roof, often filled with earth or 

mud. Some witnesses described it as a crack extending all the way to the surface."). 

29 FMSHRC 512 
Bell Counfy introduced several publications discussing hillseams that are consistent with 

its understanding of the term. A U.S. Dept. of Interior, Bureau bf Mines report, published about 

1989, entitled "Hillseam Geology and Roof Instability Near Outcrop in Eastern Kentucky Drift 

Mines" contained several references to hillseams. Ex. ,R-31. "Hillseam is the eastern Kentucky 

miners term for weather-enlarged tension joints that occill- in shallow mine overburden where 

surface· slopes are steep. Hillseams are most con~picuous within 200 feet laterally of a coalbed 

outcrop and under 300 feet or less of overbμrden." Ex. R-31 at i. ''Some evidence of weathering 

is necessary to distinguish hillseams frQm mining-induced cracks in the roof" Ex. R-31 at 6. 

"In general, the hillsearns occur mostly within 200 ft. of coal outcrop and, therefore, under about 

77 to 116 ft of overburden, given the hillside slope conditions of the district, which range from 

21-30 degrees." Ex. R-31at17. "Hillseams in eastern Kentucky are weather'.'"enlarged.tension_ 

joints that occur in shallow mine overburden where surface slopes are steep. They occur with the 

greatest frequency and severity within 200 ft laterally of the C()albed outcrop, then decrease in 

frequency and severityto about 700 ft inby outcrop under 300 ft or less of overburden .... 

Hillseams -generally extend to the surface as indicated by the initial flow of mud and water into. 

mines." Ex. R-31 at 31. 

An Information Circular published in 2003 by the National Institute for Occupational 

Safety and Health (''NIOSH") described hillseams as "Systema~ic joint sets near outcrop" and 

noted that "[m]ost hilltop mines must leave at least 150 ft of barrier between the mine and 

outcrop." Ex. R-32at 20. A 2003 Report to Congress byMSHA's Office of Surface Mining, 

dealing with coal waste impoundments, stated that '"hillseam' is.a term used by miners for 

highly weathered joints that may be found near an outcrop." Ex. R'.'"39 at 11. 

The joints in the roof of the #5 entry were not weathered; they had no mud, water or other 

foreign substance in them.8 Furthermore, they were some 1,500 feet from the outcrop, where the 

overburden was about 500 feet, i.e., a location where hillseams would not be expected. Under 

Bell County's experience and understanding, the joints were not hillseams. Tr. 635 .. Prior to the 

accident, MSHA officials apparently agreed. An inspector and a field office supervisor had 

inspected the area where the alleged hillseams were located,. and did not identify them as 

hillseams or raise any other issues with respect to Bell County's compliance yvith its Roof 

Control Plan. 

Mine maps, on which mining progress was recorded, show that the area where .the 

accident occurred was mined on advance between May 16 and May 20, 2004, .one month. before 

the fatal accident. Bell County's engineering deJ?artment conducted surveys of the mine every . 

second day, to assure that entries were driven straight, crosscuts were made at proper locations, 

and to get accurate figures on the amount of coal mined. Tr. 623-24. Spads, numbered markers 

driven into the roof of the mine, were set at various Sl.lIVey points, and the distances from the 

spads to the crosscuts and faces were recorded in the survey book. Tr .. 714-15. Wright used the 

survey book to determine the locations of the faces on May 18 and 20, and drew them on a copy 

8 All witnesses who offered a description of the joints in the #5 entry testified that there 

was no mud or W;iter in them. Tr. 107, 204, 271, 281-84, 595, 796-97; ex. G-15. 

29 FMSHRC 513 
of an exhibit introduced by the Secretary showing the locations of various hillseams. Tr. 624-29; 

ex. R-23. 

John Sizemore, an MSHA inspector, had inspected the 004/003 section on May 18 and 

20, 2004. On the 18th he was accompanied by Murray and on the 20th by Murray and MSHA 

Field Office supervisor Jim Langley. ·On his inspections, Sizemore paid careful attention to roof 

conditions, and compliance with the Roof Control Plan. Tr. 731, 737, 743. His field notes from 

May 18 were consulted to detei:mine where he traveled when he inspected the faces, power 

center, loadout point and belt line. ExhibitR-23 shows that, oh May 18, Sizemore and Murray 

traveled through several critical areas of the mine where the Secretary contends that there were 

open and obvious hillseams. According to the map, Sizemore and Murray should have 

encountered hillseams in the #3 entry near the face~ in the #5 entry near the face, in the #6 entry 

near the face, in the crosscut between the #6 and #7 entries, in the #7 entry outby as they traveled 

to the power center, in the #5 entry outby and in the #4 entry.9 Ex. R-23. Neither Sizemore nor 

Murray identified any hillseams; or any deviations from Respondent's Roof Control Plan on 

May 18.10 Tr. 524, 530-31, 731, 742. 

Wright performed-the same process for May 20. He drew the locations of the faces, and 

indicated a route of travel that Murray, Sizemore and Langley would have followed that day. 

Sizemore, Langley and Murray should have encountered a hillseam in the #7 entry and, possibly, 

the parallel hillseams in the #5 entry that eventually resulted in the roof fall. Ex. R-23; Langley 

had come to the mine on May 2-0 with a specific concern about hillseanis, and was focusing on 

hillseams and compliance with the Roof Control Plan when he traveled on May 20. Tr. 523. 

Neither Sizemore nor Langley identified any hillseams, or any deviations from Respondent's 

RoofControlPlanonMay20. Tr. 524, 530-31, 731, 742. Langley testified that the 

displacement on a hillseam will be wider than the displacement on a stress crack, and hillseams 

will "often" have mud and water in them. Tr. 532. He agreed that, in the absence of mud or 

water, it is "sometimes" not obvious that a crack is a hillseam. Tr. 532. 

There is substantial evidence that MSHA's definition ofhillseams changed after the 

accident, at least as to the field office personnel who were responsible for enforcement at Bell 

9 Hillseams are preexisting conditions, not caused by mining activity. Consequently, the 

hillseams would have been present when the entries were mined on advance~ and would have 

been present on May 18 and May 20. Tr. 439, 443, 459, 576. 

10 The Secretary elicited only limited evidence to challenge Wright's analysis. She 

argued that it was not accurate because it was "double hearsay," and posited that Bell County did 

not call Sizemore as a witness to confirm the information because it "did not reflect the true 

route[s] that he traveled." Sec'y Br. at 4. However, as Bell County pointed oulin its Reply 

Brief, the business records and notes were not hearsay, which, in any event, is admissible in 

Commission hearings. 29 C.F.R. § 2700.63(a). Moreover, I find more indicative of the accuracy 

of the information, the fact that the Secretary did not attempt to elicit from Sizemore, either on 

cross-examination or by calling him as a witness on rebuttal, any testimony to counter Wright's. 

29 FMSHRC 514 
County's mine. Following the accident, Sizemore issued additional citations for ~properly 

supported hillseams. Wright disagreed that the cracks were hillseams, and asked Sizemore for a 

de:finition·ofthe term. Tr. 645-46. Sizemore did not provide one~ but made a phone call and 

asked to speak to someone in technical support. He asked for a definition of the term .hillseam. 

When he got off the phone, Sizemore told Wright that he had been told that they" wouldn't 

touch that one with a ten foot pole." Tr. 646-47. A couple of days later, Sizemore gave Wright a 

note that had three words written on it, "displacement, mud, water," and told Wright that that was 

a hillseam. Later, after citations were is.sued in August, Wright told Sizemore that he had never 

considered anything like. a hairline crack to be a hillseam, and Sizemore responded that 

everything had changed because of the fatality and that every crack in the top had to be 

considered a hillseam. 11 Tr. 648. 

Michael Guana, a mining engineer employed in the roof control division ofMS~'s 

Tridelphia Safety and Health Technology Center, testified as an expert witness in the field of . 

ground/roof control. He defined a hillseam as "a term used in the eastern mining region, eastern 

Kentucky, to describe an open joint." Tr. 558. Hillseams are formed over geologic time as & 

result of regional stresses, and are not caused by the mining process. Tr. 558. Guana:expl$ed 

that by "open joint" he meant a joint in the rock strata that ''you could put your finger tips in or . 

we could actually see up into ... the roof a short distance in the order of six inches." Tr. 571. 

Guana distinguished a "crack" from a hillseam by explaining, that in MSHA's roof control 

division, a crack is a fault caused by the mining process. Tr. 559. 

Guana disagreed with a number of statements in the Bureau of Mines publication. 

Tr. 580, 581, 584 .. He beliey~s that hillseams do not have to be weathered joints, and do not have 

to occur near a coalbed __ outcrop or under shallow cover. Rather, they could occur anywhere.in a 

mine; Tr. 579. He believes thatthe definition ofhillseam has changed since 1989. Tr. 590 . . 

However, statements in the NIOSJI and especially the MSHA publications, both from 2003; were 

essentially consistent with the 1989 publication, and _he disagreed with the description in the 

MSHA publication. Tr. 586. Guana also testified that "there is no published definition" of the 

term "hillseam," and acknowledged that there is "no definition that's accepted across all aspects. 

ofacademia." Tr. 596. 

Lester Cox, Jr., the lead inspector on MSHA's investigative team, had-18 years of mining 

experience and 13 years ofMSHA experience at the time of the investigation, and testified about 

hillseams. Tr. 371-74. He defined a hillseam as "a vertical fracture in the mine roof ... that 

existed prior to the mining process ... and .... can extend to the surface area,". Tr. 381. 

A hillseam is a type of crack and is "obvious." Tr. 381-82. "Most of the time the fracture crack 

can be jagged, like something that's been ripped, and a hillseam will be more or less smooth 

lines, straight lines." Tr .. 382. He testified that a photograph taken during the investigation 

depicted a hillseam in the #5 entry that was not involved in the fall. Tr. 403-04; ex. G-19. 

11 The Secretary did not call Sizemore as a witness either in her case in chief, or on 

rebuttal. He was called aswitness by Respondents. The Secretary did not cross-examine him 

with respect to these conversations, and I conclude that Wright's descriptions are accurate. 

29 FMSHRC 515 
He agreed that h:lllseams usually extend all the way to the surface, that there are cracks that are 

not created by the mining process that are not hillseams, and that hillseams are more likely to 

occur near the outcrop and under shallow depth of cover. Tr. 438-43. He also agreed that it 

would be important to know what the roof looked like before the rock fell in order to say whether 

or not a crack was a hillseam, and that use of the term hillseam may vary depending upon the 

locality and mining culture in which mining is done: Tr. 444. Cox did not agree that the Bureau 

of Mines publication could be interpreted to mean thathillseams would not occur more than 

700 feet away from the outcrop or where there is more than 300 feet of overburden .. Tr. 441-43. 

He saw hillseams in the videotape taken by Pennington, and observed hillseams outby the fall 

and in other areas during the investigation. Tr. 392-93. They were "obvious." Tr. 393. 

The Secretary's broad definition of the term "hillseam," i.e., an open joint anywhere in a 

mine, was not disclosed until after the accident. No publication or other documentation was 

offered to support the definition. The Secretary also did not offer any evidence in an attempt to 

prove that her definition was, or should have been, understood by Bell County because of either 

the history and purpose of the use of the term in the Roof Control Plan, orconsistent 

enforcement. In fact, the only evidence as to enforcement prior to the accident is inconsistent 

with her definition. I find that Bell County's Roof Control Plan was not ambiguous as to the 

term "hillseam," and that thejoints in the #5 entry, between which the roof fall occurred, were 

not hillseams within the meaning of the Plan. Consequently the Roof Control Plan was not 

violated, as alleged in Citation No. 7538674. The Secretary does not argue that any other plan or 

regulatory provision was violated. 

The Secretary introduced significant evidence in support of her argument. However, 

ultimately, I find it unpersuasive. Both.Guana·and Cox testified that hillseams in the #5 entry 

were evident in the video tape taken by Pennington. As noted above, however, the joints in the 

#5 entry had no mud· or water in them, and were not hillseams within the meaning of the Roof 

Control Plan. Moreover, it is highly likely that displacement, which Guana opined is the critieal 

element in determining whether a joint is a hillseam, had been altered by mining done that 

evening prior to the depiction of the joints in the video. Retreat mining had begun in the 

#5 entry, and portions of the supporting pillars had been removed. The roof had been "working;" 

and dribbling had occurred along the joints, i.e., small pieces of rock had fallen out. By the time 

it was depicted in the video, the joint may well have appeared more dangerous than it had prior to 

the start of the shift. 

The Secretary also relies heavily on a statement given by Belcher, in which he relates that 

prior to the accident, he ''wasn't aware of the requirements of the Roof Control Plan when · 

hillseams were encountered." Ex. G-24. He also stated that he "was aware of the two seams 

running down the #5 entry," had "checked the test holes" and "didn'thave any reason for·· 

concern;" although he did have concerns about the roof where the crew was mining and ''warned 

them to keep an eye" on it and move on if anything unusual happened. Ex. G-24. I do not find 

this statement to be as damaging as the Secretary urges. Belcher's statement was reduced to 

writing on March 5, 2005, more than eight months after the accident. However, it appears to 

have been the product of an interview that was conducted during the investigation, which is 

29 FMSHRC 516 
referred to in the narrative of another violation. Ex. G-8. There is no other evidence as to the 

substance of the interview. The timing and circumstances under which the_jnterview was 

conducted are unknown. It is clear that MSHA was applying a very broad interpretation of the 

term hillseam during and after its investigati~n~ While it is apparent tliat Belcher was aware of 

some features of the roof in the #5 entry prior to the accident, it is not .so clear that, at that time, 

he recognized the features to have been hillseams., Belcher apparently was shown several 

photographs. of cracks or joints and stated that, with one exception, he did not consider that any 

of them depicted a hillseam. The photos were not included with the statement, and it unclear 

exactly what he considered a hillseam, even at the time he gave the statement In addition, he 

believed that one reason that the joints in the #5 entry were not treated as hillseams was because 

the "people on the section" did not think that the joints were hillseams. Ex. G-24 at 3. 

Several miners testified that there were seams or hillseams in the #5 entry. Don Thomas, 

who installed roof bolts in some portion of the #5 entry, testified that the entry had cracks, . 

hillseams or some combination of the two, because they were visible.12 There was no mud or 

water in them. Tr. 281-84. Jonathan Shelton, who had at Iea5t five years of experience, testified 

that a hillseam is a "separation in rock, not like a hairline crack, that you could see up into, and 

goes through the whole coal seam, rock seam, roof and floor." Tr. 263. He saw hillseams in the 

#5 entry in the area where the accident happened, a couple of feet off the rib. Tr. 262, 264. 

There was no mud or water in them. Tr. 271. However, he .w:as also sure that an MSHA 

inspector had been in that area and had not identified any J:Pllseams. Tr. 270. Bill Wilder ran a 

shuttle car in the #5 entry on June 16, 2004. He testified that the top was bad, becaμse the~e were 

two seams running up the entry for two to three breaks. Tr. 185~86. Hillseams are bad because 

they tend to drop out. Tr. 208. He learned the term hillseam in Tennessee, where hillseams have 

a crystaline or glassy substance in them. Tr. 209-10. He observed no mud or water in the seams, 

but offered that "everything was a hillseam," which Bell County contends is.a post-accident 

definition. Tr. 206. Lemarr identified what "looks like a hill .seam ~rack" in the P~nnington 

videotape, pretty close to where the accident happened.13 Tr. 98-99. He recalled that the joint 

ran between two pillars and. he did not see any immediate danger because it was supported by the . . 

two pillars. Tr. 107. The primary joints involved in the fall ran up the ei:itry. However,it 

appears that the one on the left may have been slightly within the pillar_ !in~ in the 'area of the first 

open crosscut. 

Conversely; Bailey saw a c:rack in entry #5 on the left side, but determined tlJ.at it was not 

a hillseam because it had no mud or water in it. Ex. G".'25. He also was sure that an MSHA 

inspector had been in the area, and had not cited or called attention to improp~ly supported 

hillseams. Ex. G-25, Bailey identified pictures of hillseams that had been encountered in 

another part of the mine. Tr. 777-78; ex. R-26, R-27, R-28, R-29. David Cinnamon, a roof 

bolter with 29 years of e~perience at several mines, testified that a hillseam was "anything that 

had mud and water coming out ofit." Tr, 225, 246. Hillseamswere large openings, "some as 

12 Thomas is incorrectly identified in the hearing transcript as J o}m Thomas, 

13 My concerns .about the condition of the joint at that time have been previously noted. 

29 FMSHRC 517 
big as your hand:'' Tr.·246 .. He had never encountered one except within 200 to 300 feet of the 

outcrop, and wolild not expect to see one where there was 500 to 550 feet of overburden. 

Tr. 225, 245. Tr. 225, 237, 247. Anthony McClillough, with 17 years of experience, also 

testified that hillseams had mud or water running out of them. Tr. 830. Renee Smith drove a 

shuttle car on the section and traversed :the #5 entry about 30 fui1es shortly before the accident, 

paying particular attention to the roof. He testified that there was a crack in the #5 entry that did 

not have mud or water in it and was not a hillseam, 796-97; · There was no discoloration around · 

the crack, and he was confident that he knew the difference between a hillseam and a crack 

Tr. 813. He·also described a picture of a weathered joint in another part of the mine as an 

"obvious" hillseam. Tr. 813; ex. R-27. 

These conflicting views, some of which may have been altered by post-accident events, 

illustrate how the term hillseam may be understood differently, even within the same mining 

community. The fact that some miners may have thought that the joints in the #5 entry were 

hillseams does not alter the fact that neither Bell County nor MSHA considered them hillseams 

prior to June 16, 2004. 14 

Citation No. 7538675 

Citation No. 7538675 was issued on August 18, 2004, pursuant to section 104(a) of the 

Act, and alleges a violation of30 C.F.R. § 75.360(b)(3), which requires that preshift 

examinations be made of all areas where any miner is scheduled to work and shall include 

ventilation controls and tests of the roof, face and rib conditions. The violation is described in 

the "Condition or Practice" section of the citation as follows: 

An investigation of the fatal fall of roof accident which occurred on June 16, 

2004, determined that the pre-shift examiner, for the on-coming second shift, 

failed to properly examine the 004/003 MMU supersection. Hillseams (vertical 

openjoints) were present at various locations on the 004/003 MMU that were not 

3.dequately supported as requited in the approved Roof Control Plan, dated June 6, 

2001. The extensiveness of these hillseams should have prompted identification 

14 Even ifthe joints had been treated as hillseams under the RoofControl Plan, it is 

questionable that the accident would have been prevented. Cox conceded that had steel channels 

been used, they would not have stopped the massive roof fall. Tr. 476. He also agreed that 

narrowing the entry width to 18 feet may, or may not have had an effect on the fall. The joints 

between which the fall occurred ran about two feet off the right side ofthe entry and five feet off 

the left side, looking inby~ Tr. 478; 488. Had cribs or posts been installed on the left side of the 

entry, they would· have had no effect on the fall. If they had been installed on the right side, they 

may have been partially under the fallen material, and might have impeded the fall somewhat 

and/or provided some warning. Tr. 476-77, 491. He did not rely upon any studles or engineering 

analysis designed to determine if cribs or posts could have supported the fallen material. Cribs or 

posts also could have presented obstructions for the fleeing miners, forcing them out further into 

the entry. Tr. 482. 

29 FMSHRC 518 
as being hal:ardous roof conditions and corrective actions should have been taken. - . 

Due to the hazards associated with mining, and ~pecifically with pillar lllining, 

measures should have been implemented to adequately support the mine roof to 

correct the hazardous conditions or the area should have been dangered off and 

the section pulled back. The pre-shift record book did not contain any entries 

identifying the roof cracks or adverse roof conditions. 

Ex. G-7. 

MSHA determined that a fatal accident occurred as a result of the violation, that it was 

significant and substantial, that one employee was affected, and that the operator's negligence 

was moderate. A civil penalty in the amount of$34,000.00 has been proposed for this violation. 

The Violation 

While the citation's narrative contains_ J:>roader wording, the assertion that a fatal accident 

occurred as a result, and the Secretary's Brief make clear that this violation is also predicated 

upon the Secretary's position that the near vertical joint systems in #5 entry were obvious 

hillseams. Sec'y Br. at 42-43. Bailey conducted the preshift examination at issue. He did not 

believe that there were any hillseams in the #5 entry or anywhere else on the section. As 

explained in the discussion of the previous violation, his belief was justified under Bell County's 

and MSHA's understanding of the defnrition of the term hillseam at the time. He was also aware 

that an MSHA inspector, apparently Sizemore, had traveled the area when it had bee11 mined on .. 

advance, and did not identify any hillseams or violations of the Roof Control Plan.·. The Secretary 

has not carried her burden of proof as to this violation. 

Citation No. 7538676 

Citation No. 7538676 was issued on August 18, 2004,,pursuant to section 104(a) of the 

Act, and alleges a violation of 30 C.F.R. § 75.363(a), whi.ch requires, in part, that hazardous 

conditions identified during an examination of working areas be posted with a conspicuous 

danger sign where anyone entering the areas would pass. The violation is described in the 

"Condition or Practice" section of the citation as follows: 

An investigation of the fatal fall of roof accident; which occurred on June 16, 

2004, determined that a hazardous roof condition identified by the second shift 

section foreman was not posted with a conspicuous danger sign where anyone 

entering the area would pass, and the hazardous condition was not corrected. The 

section foreman Stated during an interview that while he was making his safety 

checks of the 004/003 MMU, he observed hillseams in the No. 4 and 5 entries 

outby the active pillar line. He stated he observed one hillseam in the No. 5 entry, 

29 FMSHRC 519 
located on the left side, two crosscuts long, and which widened out in the crosscut 

outby the active pillar row, where the fatal fall of roof accident occurred. 

Ex. G-8. 

MSHA determined that a fatal accident occurred as a result of the violation, that it was 

significant and substantial, that one employee was affected, and that the operator's negligence 

was moderate. A civil penalty in the amount of$34,000.00 has been proposed for this violation. 

The Violation 

The Secretary relies exclusively upon the Belcher statement, exhibit G-24, for proof of 

this alleged violation. Sec'y Br. at 43-44. As noted in the previous discussion of that statement, 

which was apparently a truncated portion of an interview taken several months earlier, it is not so 

clear that, at the time Belcher did his examination on June 16, 2004, he recognized the features or 

joints in the roof of the #5 entry as hillseams. See discussion, supra, at 11-12. I find that the 

Secretary has failed to carry her burden of proof with respect to this violation. 

Order No. 7538678 

Order No. 7538678 was issued onAugUst 19, 2004,pursuant to section 104(d)(l) ofthe 

Ad, and alleges a violation of 30 C.F.R. § 75.1002(a), which requires that "Electric equipment 

must be permissible and maintained in a permissible condition when such equipment is located 

within 150 feet of pillar workings or longwall faces." The.violation is described in the 

"Condition or Practice" section of the citation as follows: 

An investigation of the fatal fall of roof accident which occurred on June 16, 

2004, determined that a non-permissible electric-powered chain saw and a nonpermissible Quasar Model VM'-Ll53 Digital Video Camera were being used 

within 150 feet of the active pillar line. During the viewing of the videotape that 

was recovered from the roof fall that was filmed atthe time retreat mining was 

being conducted in the No. 5 entry of the 003 MMU the chain saw was heard in 

the audio portion of the videotape. During interviews of workers it was disclosed 

that a non-permissible electric chain saw was used to cut timbers on the pillar line. 

The electric saw was also observed by members of MSHA's recovery team during 

recovery efforts. A separate citation was issued for methane tests not being 

conducted at twenty minute intervals or more often while coal was being mined. 

Ex. P-9. 

MSHA determined that it was highly likely that an injury resulting in lost work days or 

restricted duty would occur as a result of the violation, that it was significant and substantial, that 

five employees were affected and that the operator's negligence was high. The Secretary alleges 

that the violation was the result of the operator's unwarrantable failure to comply with the 

29 FMSHRC 520 
regulation. A civii penalty in the amount of $5,300.00 has been proposed .for this violation. 

The Violation 

The two pieces of equipment that are the subject of.this citation, the video camera and the 

electric chain saw, were not permissible. Tr. 424-26, 448, 510. The electrical plugs that were 

located on the scoops, which were used to supply power to the chain saws, were also 

nonpennissible. Tr .. 803,. The video tape recovered from the. camera conclusively e.stablishes 

that it was used within 150 feet of the pillar line. Ex: G-2. Testimony of witnesses confirms that 

fact. Tr. 65-68, 146: ·There was conflicting. evidence on whether an electric chain saw was used 

within 150 feet of the pillar line. Several Bell County employees testified that it was a common 

practice to use electric chain saws within 150 feet of the pillar line to cut timbers, and that power 

was supplied to the saws by extension cords that were plugged into the scoops; Tr. 80-81, 141-

45, 166-67, 170-71, 201-03, 215, 264, 282-84. An electric chain saw was found within 150 feet 

of the pillar line during the recovery effort, and the scoops were found to have had 

nonpermissible electric plugs installed on them. Other Bell County employees testifi.ed that they 

had not seen electric chain saws used withiμ 150 feet of the pillar line-' Tr. 228, 643, 786-87, 

800-02, 831. 

The most telling·evidence is prqvided by.statements given by two of the section foremen 

as a result of the investigation of the fatal accident. Bailey and Belcher both reported that it was 

common knowledge that electric chain saws were used wi1:hin 150 feet of the: pillar line. 

Ex. G-24, G-25. These were statements against interest. They were not repeated during the 

hearing because the foremen invoked their Fifth Amendment rights and refused to testify about 

the presence of electric chain saws. Several miners testified that they actually used the chain 

saws, and would have done so in the presence of management officials, but not MSHA 

inspectors. Tr. 176, 215, 268, 284. 

Using a chain saw near the location that .the timbers were actually being placed would 

have been considerably more convenient than taking measurements, proceeding more. than 150 

feet outby to the power center to cut timbers, and then transporting them back to the pillar line. 

Any timbers that had to be trimmed further would also not have to be. cut by hand with a bow 

saw or brought back to the area of the power center, but could easily be trimmed and installed . 

I find that the nonpermissible electric chain saw was used within 150 feet of the pillar 

line. This practice most likely was allowed to develop because of the virtual absence of methane 

in the mine. Cox testified. that nonpermissible equipment could ignite methane, and that methane 

can come out of a coal seam, accumulate in a roof cavity, and be forced out by roof falls. that 

occur during retreat mining. Tr. 428-29, 471-73. However, he conceded that his testing revealed 

no methane and th<,l.t there was no record of any tests· showing the presence of methane at any 

point in the subject area. Tr, 471-73. Several witnesses testified that methane checks done 

during imminent danger runs and preshift examinations always showed that no methane was 

present in the mine. Tr. 238, 346, 353, .644, 802, 820, 832-33. In addition, the continuous 

miners were equipped with methane monitors that were set to alarm if methane concentrations 

29 FMSHRC 521 
reached 1 %, and they never alarmed.· Tr. 644-45, 821, 832-33. There is no evidence that 

methane in any concentration, much less approaching an explosive concentration of 5%, was 

ever found in the mine. 

I find that the impermissible Video camera and electric chain saw were used within 150 

feet of the pillar line, and that the regulation was violated. The practice was long standing and 

was known and permitted by section foremen. ·The negligence of foremen, agents of the 

operator, is imputable to Respondent. Martin Marietta Aggregates, 22 FMSHRC 633, 636 

(May 2000) (citing Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 1997)). The 

characterization of Respondent's negligence with respect to this violation as "high" was clearly 

accurate. 

Significant and Substantial 

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the 

Act as a vioICltion "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." A violation is properly designated 

S&S "if, based upon the ·particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)~ 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

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. 

Mathies Coal Co., 6 FMSHRC · 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving 

Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third elenient of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August.1984). We haveemphasized that, in accordance 

with the language of section 104( d)( 1 ), it is the contribution of a violation to the 

29 FMSHRC 522 
cause and effect of a hazard that must be significant and substantial. U.S. Steel. 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in consideration. of the length of time that the violative condition 

existed prior to the citation and the time. it would. have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is significat1.t and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

. . 

In analyzing whether a potential methane hazard is s&s, the critical question is whether 

there is any likelihood of explosive concentrations of methane coming into contact with an 

ignition source. See Texasgulf, Inc., 10 FMSHRC at 501. Here the impermissible equipment 

provided readily available ignition sources for any methane that might have been present at 

explosive concentrations. However, as noted above, there is no evidenc;e that even low . . 

concentrations of methane were ever found in the mine. The possibility of methane c;oming out 

of a coal seam and accumulating in a roof cavity, that Cox testified to, was purely theoretical on 

the facts of this case. While, as Cox also observed, Respondent was not testing the atmosphere 

for methane every twenty minutes, all of the tests that were.performed showed. an absence of 

methane. MSHA's Report q{Investigation noted that "the mine liberates negligible methane." 

Ex. G-11 at 2. 

There is no evidence to establi~h. that there was any likelihood ofexplosive levels of 

methane coming into contact with one of the ignition sources. I find that_ the Secretary has failed 

to carry her burden of proving that the violation was S&S. 

Unwarrantable Failure - Negligence 

Section 104(d)(l) of the Act, pursuantto which the order was entered, addresses 

violations that are both significant and substantial and the result of an unwarrantable failure to 

comply with the particular standard. Because this violatiop_ was not S&S, it is unnecessary to 

determine whether it was also the result of an unwarrantable failure. As previously noted, 

Respondent's negligence was high. 

Individual Liability 

The Secretary assessed civil penalties against five m3l].agers of Bell County, in their 

individual capacities, mine _superintendent Donnie Wright,.mine foreman Jimmy Murray, and 

section foremen Craig Davis, Darryl Bailey and Jerry Belcher. Each is alleged to have 

knowingly authorized the violations alleged in Citation Nos. 7538674 (failure to comply with the 

Roof Control Plan with respect to hillseams in the #5 entry) and 7538678 (use of an 

29 FMSHRC 523 
nonpennissible chain saw within 150 feet of active pillaring). 15 

The Act provides that a director, officer or agent of a corporate operator may be subject to 

civil penalties in his individual capacity for knowingly authorizing, ordering or carrying out a 

violation of the Act. 30 U;S;C. § 820(c). The legal standards governing individual liability were 

summarized in Maple Creek Mining, Inc., 27 FMSHRC 555, 566-67 (Aug. 2005): 

Section 110( c) of the Mine Act provides that whenever a corporate 

operator violates a mandatory health or safety standard, a director, officer, or 

agent of such corporate operator who knowingly authorized, ordered, or carried 

out the violation shall be subject to an individual civil penalty. 30 U.S.C. 

§ 820( c ). The proper legal inquiry for determining liability under section 11 O(c) is 

whether the corporate agent knew or had reason to know of a violative condition. 

Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 

F~2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman· 

United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C.Cir. 1997), To 

establish section 110( c) liability, the Secretary must prove that an individual knew 

or had reason to know of the violative condition, not that the individual knowingly 

violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 

1992) (citing United States v. Int'! Minerals & Chem. Corp., 402 U.S, 558, 563 

(1971)): A knowing violation occurs when an individual "in a position to protect 

employee safety and health fails to act on the basis of information that gives him 

knowledge or reason to know of the existence of a violative condition." Kenny 

Richardson, 3 FMSHRC at 16 .. Section 110( c) liability is predicated on 

aggravated conduct constituting more than ordinary negligence. BethEnergy · 

[Mines, Inc., 14 FMSHRC 1232, 1245 (Aug; 1992)]. 

Wright and Murray - Docket Nos. KENT 2005-416 and KENT 2005-411 

The Roof Control Plan Violation- Citation No. 7538674 

The finding that Bell County did not violate its Roof Control Plan~ as alleged in Citation 

No. 7538674, precludes a finding ofliability against the individual Respondents. However, at 

the close of the evidence, motions for entry of judgment on behalf of Wright and Murray were 

granted, and the citations, as to them, were vacated. Tr. 845-57. The following discussion 

explains the bases of those rulings. 

As made clear in Kenny Richardson and BethEnergy, as a predicate to individual liability, 

an operator's agent must be privy to knowledge or information that gives him reason to know of 

the existence of a violative condition under circumstances that his failure fo act amounts to 

15 The Secretary conceded that none of the individual respondents could be charged with 

knowledge of the presence of the video camera that the victim "smuggled" into the mine. Tr. 21, 

462-63. 

29 FMSHRC 524 
aggravated conduct constituting more than ordinary negligence. 

The Secretary failed to carry her burden of proof as to both of these high level managers. 

Wright, the mine superintendent, h~d responsibility for three mines at the time. Tr. 614. He had 

not been underground in the Coal Creek Mine since at least May 5, 2004, well before the area of 

the roof fall was mined on advance. Tr. 293, 712. Consequently, he was not .in a position to 

have personally observed the alleged hillseams. While the Secretary contends that the alleged 

hillseams were obvious •. there is.little disagreement on the fact that, prior to the accident, neither 

Bell County nor MSHA believed that cracks in the roof of the #5 entry were hazardous 

unsupported hillseams, or thought thatthere .was any other noncompliance with the Roof Control 

Plan. There was also no evidence that anyone informed Wright of a problem w.ith hillseams or 

noncompliance with the Roof Control Plan. Hillseams had been encountered in another area 

near .the outcrop, and had been appropriately dealt with. Heintzmann beams and channel straps 

were available, if needed. There was no information known to Wright, or of which he reasonably 

should have known, that should have put him on notice of a violative condition as to the Roof 

Control Plan. 

The same holds true for Murray, except that on May 18 and 20, he was actually on the 

section in the vicinity ofwhere the roof fall later occurred while it was being mined on advance. 

Consequently, he was in a position from which he arguably could hav~: noted the existence of 

what the Secretary .contends were hillseams in the #5 entry, and that they had not been .addressed 

as required in the Roof Control Plan. However, Murray traveled with MSHA inspector Sizemore 

on May 18 and with Sizemore and MSHA field office supervisor Lru;igley on May20. Both of 

those experienced MSHA personnel were paying careful attention to roof conditions and 

compliance with the Roof Control Plan, with emphasis on hillseams on May 20. Neither 

Sizemore nor Langley observed any hillseams, or noted any other problems with roof conditions 

or possible violations of the Roof Control Plan, Tr. 521-:31, 735, 742. Under such 

circumstances, any failure by Murray to observe hillseams and alleged violations of the Roof 

Control Plan could not have risen to tlie level of aggravated conduct constituting more than 

ordinary negligence. 

Use ofNonpermissible Electric Chain Saw-'- Citation No. 75386. 78 . . 

The allegations with respect to the nonpermissible chain saw presented closer questions. 

As noted above, it was a common practice to use a nonpermissible electric chain saw within 

150 feet of the pillar line .. The practice was known to, and permitted by, section foremen. There 

w~s a permissible inference tliat Murray and Wright were aware of the practice, which was the 

Secretary's argument on these allegations. 16 The difficulty with the argument was that it was 

perfectly legal to use nonpermissible electric chain saws in most areas of the mine. The chain 

saws were typically used to cut timbers in the track and belt entries .. Consequently, procurement 

and availability of electric chain saws would provide no indication that violations of regulations 

16 The Secretary argued that "If the foremen knew, then both the mine superintendent 

and the mine foreman had to know." Tr. 606. 

29 FMSHRC 525 
were occurring. It is only use of such nonpermissible equipment within 150 feet of the active 

pillar line that is prohibited by the regulation. 

There was no evidence that Wright or Murray were present when the chain saws were 

used at the pillar line, and there is no evidence that they were informed of such use. While it is 

possible that it might have been mentioned, perhaps by one of the section foremen, it appears to 

have been such a common practice that it could easily have been viewed as unremarkable. 

Miners using the chain saws at the pillar line were well-aware that the practice violated MSHA 

regulations. Tr. 176, 215, 268, 284. It strikes me as unlikely that a miner or section foreman 

would inform Wright or Murray that MSHA regulations were beingtoutinely·violated. Nor did 

the fact that several miners stated that they most likelywould not have stopped theirillegal use of 

the chain saws in Wright's or Murray's presence lend much strength to the inference. It could 

merely have reflected their assumption that the foremen's tolerance of the practice extended to 

higher levels of mine management. 

In opposing the motions made at the close of the Secretary's case and renewed after all 

parties rested, the Secretary argued that, as high management officials, Wright and Murray had 

"an absolute duty to ensure that the Roof Control Plan ... was being followed, " and that they 

were obligated to go underground "as often as necessary to ensure that the Roof Control Plan is · 

being followed, and that the regulations are being followed" even if that meant "every day." 

Tr. 603, 608, 854. The core of the argument is that individual high-level managers are strictly 

liable for violations at mines over which they exercise authority. I rejected that argument as 

being inconsistent with the Act's provisions on personal liability. 

The Secretary failed to carry her burden of proof with respect to the allegations against 

Wright and Murray. She failed to establish that they were privy to information that gave them 

knowledge or reason to know of the existence of the allegedly violative conditions, and that their 

failure to act amounted to aggravated conduct constituting more than ordinary negligence. 

I declined to draw the inferences that the Secretary urged, because I found them· unpersuasive, 

and clearly not strong enough to justify a finding of aggravated conduct. 

Davis. Bailey and Belcher - Docket Nos. KENT 2005-401. KENT 2005-402 and·· 

KENT 2005-409 

The cases against the section foremen rest upon an entirely different footing. They were · 

in the subject area of the mine virtually every working day, and had the responsibility to perforlll 

on-shift inspections to identify hazardous conditions. Theywere in a position to have had actual 

knowledge of conditions and practices occurring during the development and retreat mining 

phases of the subject sections. As to Citation No. 7538674, the finding that the Roof Control 

Plan was not violated precludes findings of liability against the individual Respondents. 

However, there is ample evidence to justify a conclusion that the use of nonpermissible 

electric chain saws within 150 feet of the pillar line was a common practice, and that the section 

foremen knew of, and permitted, it. See the discussion of Citation No. 7538678. Bailey and 

29 FMSHRC. 526 
Belcher admitted knowledge of the practice in their written statements. 17 Ex. G.,.24, G-25. While 

there is no direct evidence that Davis permitted the practice, I find that he also must have been 

aware of and allowed the use of electric chain saws within 150 feet of the pillar line. While 

Davis' third shift normally perfonned maintenance and similar functions, coal was occasionally 

produced when the other work was done. Tr. 309-11. Davis also occasionally filled in on other 

shifts, if one of the foremen was off. Tr. 788. Consequently, he was most likely aware of the 

common practice. 

1 find that Davis, Bailey and Belcher knowingly authorized the violation alleged in 

Citation No. 7538678-, within the meaning of section 1 lO(c) of the Act. However, as noted in the 

discussion of that citation, the violation was not S&S and the gravity was low. Civil penalties in 

the amount of$500;00 were proposed as to each of these Respondent_s for this violation. 

Considering that the violation was non-S&S and the lower gravity, and upon consideration of the 

factors enumerated in section 11 O(i) of the Act, I impose civil penalties upon Davis, Baily and 

Belcher in the amount of $200.00 each. 

Part II - Violations Unrelated to the Fatality 

Sizemore returned to the mine on August 17, 2004, to conduct a regular quarterly 

inspection. Several orders and citations were issued in the course of the inspection. After all 

parties rested their cases on the violationsrelated to the fatality, the individual Respondents were 

excused. Evidence admitted during Part I of the hearing forms part of the record as to the alleged 

violations discussed below. Evidence admitted during Part .II of the hearing does not form a part 

of the record upon which the alleged violations related to the fatality were decided .. Tr. 833-34. 

Citation No. 7524384 and hnminent Danger Order No. 7524383 

On August 17, 2004, Sizemore entered the mine with Murray and two state.inspectors,. 

traveling to the 004 section down the track entry, the #3 entry. 18 Bell County. was retreat mining 

at the time. About 10 crosscuts from the pillar line, Sizemore observed what he believed to be a 

hillseam on the right side of the entry. It ran down the entry for about two crosscuts, gradually 

crossing it, and entering the rib on the left side. Tr. 871; ex. G:-40. About one crosscut further in 

from the start of the first hillseam; he noticed another hillseam running parallel to the first one, 

also extending about two crosscuts down the entry before entering the left rib. Tr. 872. One 

17 The Secretary requested that negative inferences be drawn because Belcher and Bailey 

asserted the Fifth Amendment and refused to testify regarding the use of electric chain saws 

within 150 feet of the pillar line. Sec'y Br. at 45-46,48. I decline to do so. Both individuals 

provided statements in which they admitted knowledge of the use of electric chain saws within 

150 feet of the pillar line. The findings against them on this violation have ample evidentiary 

support without such inferences. 

18 The 004 section was located in an area of the mine different from where it had been at 

the time of the June 16 fatality. Tr. 871. 

29 FMSHRC 527 
crosscut further mby, he found two more hillseams. Tr. 874. Steel channels had been installed 

on a portion of one of the hillseams, but only straps were used on the remainder. Tr. 873-74. 

Sizemore described the hillseams as being "no less than one-half inch wide," with smooth edges. 

Tr. 874. He agreed that there was no mud, water or other foreign substance inthe openings, and 

that he had not traced the conditions to the surface. Tr. 890. Sizemore determined that the 

conditions violated Bell County's Roof Control Plan, and that they presented an imminent 

danger. He cited the conditions and issued an imminent danger order. 

Murray disagreed with Sizemore, He did not believe that the conditions were hillseams, 

and called Langley, the field office supervisor, to complain. Tr. 897. Langley, and Roger 

Dingess, a roof control specialist, went to the mine that afternoon and traveled with Murray to 

the scene. Tr. 899. Langley couldn't remember what the conditions looked like, but recalled that 

he and Dingess agreed that the conditions had been properly cited. Tr. 900. 

Bailey testified that the conditions cited were not hillseams, just cracks, with no mud, 

water or foreign substance in them. Tr. 925-26. Nevertheless, in order to terminate the citation 

and order, he directed two miners to timber the area of£ .. • The miners went to the area, but were 

unable to find the cited conditions, and Bailey had to go and point them out. Tr. 926. Benny 

Capps was one of the miners, and he corroborated Bailey's testimony. Tr. 907. Capps believed 

that they were just stress cracks, only as wide as the thickness of a piece of paper; and he did not 

consider them to be bad conditions. Tr. 907-08. Murray had also asked Wright too look at the 

conditions. Wright went to the area, but he, too, was unable to find the alleged hillseams. 

Murray pointed out what Sizemore had cited. Wright testified that he could only see one small 

crack, that looked like a pencil line had been drawn on the mine roof There was no 

displacement, and it was "nothing like a hillseam." Tr. 944-46. 

Citation No. 7524384 was issued pursuant to section 104(a) of the Act, and alleges a 

violation of30 C.F.R. § 75.220(a){l), which requires that mine operators develop and follow a 

Roof Control Plan approved by the MSHA District Manager. The violation is described in the 

"Condition or Practice" section of the citation as follows: 

The operator has not followed the approved Roof Control Plan. 

1. Steel straps were used in lieu of the required steel channels or wooden 

crossbars, to support hillseams and parallel hillseams in the No. 3 entry beginning 

at the approx. 10th crosscut outby the pillar line on the 004 section and extending 

parallel with the no. 3 entry to the approx. 7th crosscut inby. 

2. The entry width had not been reduced to the required 18 feet when subnormal 

roof conditions are encountered. 

Ex.G-33. 

Sizemore determined that a fatal accident was highly likely to occur as a result of the 

violation, that it was significant and substantial, that one employee was affected and that the 

operator's negligence was high. A civil penalty in the amount of$6,000.00 has been proposed 

29 FMSHRC 528 
for this violation. · 

Order No. 7524383 was issued pursuant to section 107(a) of the Act, based upon 

Sizemore's finding that the cited conditions constituted an imminent danger. It required the 

removal of miners from "The no. 3 entry, beginning at the approx 10th crosscut outby the pillar 

line and extending to the approx. 7th crosscut inby." Ex. P-34. 

The Citation 

Sizemore and Langley were somewhat UI1Certain in their descriptions of how wide the 

alleged hillseams were. Langley did not recall, arid Siz~:rμore stated that they were "no less than 

one-half inch wide." Tr. 873-74, 900. In describing siinilar conditions that he cited .on August 

31, he used the. same terminology. Tr, 8~3. As to those allege<l hillseams, he acknowledged that 

he couldn't remember the exact width, and one-half inch was ~just a gu,ess." Tr. 883, 892-93. 

There are no recorded measurements, or other descriptiop.s of the alleged hillseams in Sizemore's 

notes. Ex. P-40 •. The descriptions offered by Murray; Wright,-Bailey and Capps were consistent. 

I find that the conditions were crack.,.like openings, with very limited displacement, 

i.e., approximately one-sixteenth of an inch. It is undisputed that they had no water, mud or 

other foreign substance in them. 

As noted in the discussion of Citation No. 7538674, at least up to June 15, 2004, MSHA 

and Bell County were largely in agreement as to the 4efinition of the term "hillseams" in the 

Roof Control Plan. It did not include conditions like those that were the subject of Citation No. 

7524384. MSHA'sReport of Investigation of the June 16 fatality was not issued until August 

17, 2004, and the citations associated vvjthit were issued on August 18 and 19. Because the ' ' ' 

conditions cited were not hillseamswithin the meaning ofBell ,County's Roof Control Plan, 

support with steel channels and narrowing of the eiitrywere not required. Bell County did not 

violate its Roof Control Plan by failing to properly address hillseams. 19 

While Sizemore had issued citations for Roof CqntrolPlan violations involving hillseams 

on June 21 and July 12; 2004, there is no description of those conditions in the record.20 

Consequently, there is no evidence that, prior to August 17, Bell County had been put on notice 

that cracks orjoints, without water, mud or some foreign substance in them, had to be treated like 

hillseams under its Roof Control Plan, i.e., the June and July citations did not establish notice of 

19 There was no evidence of a conclusive method for determining whether a crack-like 

opening in a mine roof is a near vertical joint or a stress crack. Witnesses described differences 

in appearance, i.e.,joints tend to. be relatively straight and have significant displacement, whereas 

cracks caused by mining would be smaller and more jagged. Guana also stated that joints 

typically would be open for a.depth of six inches or more. 

20 The citations were issued under section 104(a) of the Act. Ex. G-37, G-38. 

29 FMSHRC 529 
MSHA's new interpretation through consistent enforcement.21 

The Imminent Dange~ Order 

Section 3(j) of the Act defines "imminent danger''. as the "existence of any condition or 

practice in a coal or other mine which could reasonably be expected to cause death ot serious 

physical harm before such condition or practice can be abated." 30 U.S.C. § 802(j). Section 

107(a) of the Act provides, in pertinent part: 

If, upon any inspection or investigation of a coal or other mine which is 

subject to this Act, an authorized'representative of the Secretary finds· that an 

imminent danger exists, such representative shall determine the extent of the area 

of such mine throughout which the danger·exists, and issue an order requiring the 

operator of such mine to cause all persons, except those referred to· in section 

104( c ), to be withdrawn from, and to be prohibited from entering~ such area until 

an authorized representative of the Secretary determines that such imminent 

danger and the conditions ot practices which caused such imminent dangerno 

longer exist. 

30 U.S.C. § 817(a). 

"Imminent danger orders permit art inspector to remove miners immediately from a 

dangerous situation, without affording the operator the right of prior review, even where the mine 

operator did not create the danger and where the danger does not violate the Mine Act or the 

Secretary's regulations. This is an extraordinary power that is available only when the 

'seriousness of the situation demands such immediate action."' Utah Power & Light Co., 

13 FMSHRC 1617, 1622 (Oct. 1991) (quoting from the legislative history of the Coal Act). An 

imminent danger exists "when the condition or practice observed could reasonably be expected 

to cause death or serious physical harm to a miner if normal mining operations were permitted to 

proceed in the area before the dangerous condition is eliminated." Wyoming Fuel Co., 

14 FMSHRC 1282, 1290 (Aug. 1992} (quoting from Rochester & Pittsburgh Coal Co., 

11FMSHRC2159, 2163 (Nov. 1989)). Inspectors must determine whether a hazard presents an 

imminent danger quickly and without delay, and a finding of an imminent danger must be 

supported "unless there is evidence that [the inspector] had abused his discretion or authority;" 

11 FMSHRC at 2164. An inspector must make a reasonable investigation of the facts, under the 

circumstances, and must make his determination on the basis of the facts known, or reasonably 

available to him. An inspector may abuse his discretion if he issues a section 107(a) order 

21 As of August 17, Sizemore was aware that MSHA was considering revisions to Bell 

County's Roof Control Plan: He ascertained by phone that no changes had been made. A change 

was later issued on August 20, 2004. Tr. 869, 888; ex; G-46. The post-fatality amendment to the 

plan did not redefine the term hillseams, or require that cracks or joints be treated as hillseams .. It 

provided that "Areas where near vertical joints are parallel within the same entry or crosscut will 

not be second mined." 

29 FMSHRC 530 
without determining that the condition or practice presents an impending hazard requiring the 

immediate withdrawal of miners .. 13 FMSHRC at 1622'-23. 

While an inspector has considerable discretion in determining whether an imminent 

danger exists, that discretion is not without limits. As the Commission explained in Islal'J,d Crl!ek 

Coal Co., 15 FMSHRC 339, 347-48 (March 1993): 

· ·While the crucial question in imminent danger cases is whether the 

inspector abused his discretion or authority, thejugge is not required to accept an 

inspector's subjective "perception" that an imminent danger existed. Rather, the 

judge must evaluate whether, given the particular circumstances, it was reasonable 

for the inspector to conclude that an imminent danger existed. The Secretary still 

bears the burden of proving [her]case.byapreponderance of the evidence. 

Although an inspector .is granted wide .discretion bec<mse he must act quickly to 

remove miners from a situation that he believes to be hazardous, the 

reasonableness of an inspector's imminent danger finding is subject to subsequent 

examination at the ~videntiary hearing. 

The fact that the cited conditions were not a violation of Bell County's Roof Control Plan. 

is not dispositive of whether the imminent _danger order was properly issued, because an 

imminent danger may exist in the absence of a violation of a mandatory health or safety standard. 

Utah Power & Light, supra. Although MSHA's report on the investigation of the fatality was 

not issued until August 17, both Sizemore and Langley were aware of the conclusion that the fall 

had started at the pillar line and extended up the #5 entry between tWo parallel joint systems. 

They believed that the conditions that Sizemore found on August J 7 were joints that presented a 

similar potential fora rooff<;t:ll. Tr. 875'-76, 900. As Langley stated, ''I took into consideration 

that there was pulling down and they would soon be in that area and it would be the same 

situation that we had before,. the roofcould drop out suddenly.", Tr. 900. 

While Sizemore and Langley had legitimate concerns about the potential for a roof fall .. 

similar to that that had occurred on June 16, there are several significant differences between the 

two situations that cast considerable doubt on whether the conditions that existed on August 17 ... 

constituted an imminent danger. The June 16 incident involved parallel joint systems that were 

typically less than J 5 feet apart, and ran within and parallel to the entry up to the pillar line. The 

cave that started at the pillar line pulled down rock from between the joints until a secondary 

joint was encountered. Assuming that the conditions that Sizemore saw on August 17 were "near 

vertical joints," they ran diagonally across the entry and were most likely about 20 feet apart. 22 

They did not·run, unsupported, all the way to.the pillar/cave line. Rather, they ran from rib to rib, 

where they were supported bythe pillars, and were seven to ten breaks away:from the pillar line .. 

22 Sizemore described the.joints as running at an angle between the ribs of the 20-foot 

wide entry, crossing it in roughly two brej3.ks. The second joi:p.t started about 50 feet inby the 

first Estimating from a J;'OUgh diagram, the joints would have been: slightly less than 20 feet 

apart. 

29 FMSHRC 531 
While SiZemore wa8 concerned that the retreat mining process put stress on the roof, he . · 

did not explain how any such stress could affect the roof in the cited area. It was a considerable 

distance from where mining was being done, and the joints were supported by several rows of 

pillars. Guana, MSHA's expert, had testified that offsetting entries, so thatjoint lines ran into 

pillars rather than contiriuing up entries, would have been a reasonable way to lessen the dangers 

posed by parallel joint systems. Tr. 565-66. Langley was concerned beeause "they would soon . 

be in that area." Tr. 900. He did not explain what he meant by "soon," but it appears that it 

would have been more a matter of days; than hours, before the retreat 'mining process would have 

approached that area. The condition was abated, i.e., timbered off, before Sizemore left. 

Ex. G-40. 

The cracks may have been joints, like those involved in the fatal roof fall. However, they 

were supported by pillars and did not run up to the cave line. They were the type of conditions 

that had not been cited by MSHA prior to the fatality. I find that they did not present an 

impending hazard at that time. 

As noted above, the extraordinary power to remove miners immediately, without prior 

review, is available only when the seriousness of the situation demands such immediate action. I 

find that the Secretary has not carried her burden of proof with respect to the imminent danger 

order, i.e., that the conditions could reasonably be expected to cause death or serious injury 

before they could be abated~ 

The August 31. 2004, Orders 

By August 31, 2004, Bell County had taken Sizemore's articulation ofMSHA's 

expanded definition ofhillseams to heart. Its foremen had been instructed that "everything was a 

hillseam." Davis conducted the preshifl examination for the day shift on August 31, and noted in 

entries #3 and #6 the presence of hillseatns that had not been properly supported as required in 

the Roof Control Plan. Tr. 918-19. He identified cracks with no mud or water in them as 

hillseams because his supervisors had told him that"everything was a hillseam." Tr. 919. He 

testified that the entries were timbered off, effectively prohibiting travel, and that he then called 

out the results of the examination and the corrective action to Bailey, who recorded it in the 

preshift report book. Tr. 920. A copy of the preshift report is consistent with his testimony, as 

was testimony by Bailey. Tr. 926-28; ex. G-39. Bailey stated that he had written all of the 

notations on the preshift report, including the corrective action, before Sizemore saw it. Tr. 933. 

On August 31; 2004, Sizemore and MSHA inspector Peggy Langley were continuing the 

regular quarterly inspection, and were conducting a dust survey. Sizemore testified that when he 

examined the preshift report for the day shift, hillseams had been noted in the #6 and #7 entries 

(not the #3 entry), and that no corrective action had been entered. Tr. 879. He then went_ 

underground, accompanied by Bailey and Murray. After he installed a dust monitor on the intake 

side and issued a citation for a violation at the power center, he did an imminent danger run 

across the section. When· he reached the #7 entry, he found what he believed to be a hillseam ; 

running across the last open crosscut. Tr.· 883. It was not properly supported a.S required by the 

29 FMSHRC 532 
Roof Control Plan:, and had not been posted with warning signs. He told Murray that the area 

was "shut down,, and it wasn't dangered off or anything." Tr. 883-84. He decided to issue an 

Order closing the area, pursuant to section 104(d)(2) of the Act, citing a violation of the Roof 

Control Plan. He then crawled over to the #6 entry, found a similar condition, and added it to the 

Order. Tr. 884. He stayed in the area until the conditions were timbered off, thereby abating the 

violation. He also issued an order citing a violation of the regulation governing preshift 

examinations.23 Sizemore's contemporaneously recorded field not~s are consistent with his 

testimony. Ex. PAI. 

There are substantial conflicts in the evidence with respect to these alleged violations. 

The copy of the preshift report for the day shift, Petitioner's exhibit G-J9~ was moved into 

evidence by Respondent. Tr. 948-49. It shows that a hillseam was reported in the #3 and #6 

entries (not the #7 entry), and that corrective action had been taken. Both Davis and Bailey 

testified that the report was accurate, and that all of the entries, including the corrective action, 

were made at the time Davis called the report out. Sizemore testified that he saw a partially 

completed report that showed hillseams in the #6 and #7 .entries, and an absence of corrective 

action. He believed that changes had been made to the report after he first saw it. Tr. 878. 

These conflicts pose difficult issues. However, a comment by Bailey in his written 

statement suggests that some of the conflicts can be reconciled. For the reasons that follow, I 

find that Sizemore was mistaken about the preshift report entries, but that there were unsupported 

hillseams in the #7 and #6 entries. 

I find that the copy of the preshift report is accurate. The exhibit purports to be a copy of 

a page from a record book, and was submitted as a proposed exhibit by the Secretary; 

Presumably, the Secretary had access to the actual record l>ook during the investigation and 

prehearing discovery. Had a page l>een removed from the book, it is highly likely that the 

removal could have been detected. There are also no indications that the entries on the report 

were altered. The Secretary advanced no objection to admission of the exhibit on grounds that it 

had been fabricated. In addition, both Davis and Bailey were highly experienced foremen, who 

were well aware of the proper procedures for reporting the results ofpreshift examin!:ltions. It is 

highly unlikely that Davis would have reported hazardous conditions and not taken, or reported 

corrective action. It is also highly unlikely that Bailey would have recorded a reported hazardous 

condition, without assuring that corrective action was reported as well. 

Bailey testified that he remembered the events of August 31 well, because he strongly 

disagreed with the cited violations and attempted to discuss them with Sizemore, and because he 

remembered that the #6 entry had been timbered off, which complicated removal of the 

continuous miner, Tr. 926,,930-35. Bailey's written statement discusses the August 31 

violations, and notes that the area that Sizemore cited was outby the area that Davis had 

23 When Bailey saw the order citing the Rc>0f Ccmtrol Plan violation, he was surprised. 

He did not believe the conditions were hillseams, and followed Sizemore out to his vehicle to 

protest. He didn't see the order citing the preshift violation until he returned. Tr. 932-35. 

29 FMSHRC 533 
identified in his report. Ex. G-25~ lfind that Davis found what he believed to .be hillseams, 

under the new expanded definition of that term in the #3, and #6 entries, that he had those areas 

timbered off, and reported the results of his preshift examination to Bailey, who made the entries 

in the record book. 

I also find that Sizemore discovered an improperly supported hillseam in the #7 entry, 

and that Davis had not identified, reported, or corrected it. When Sizemore discovered the 

condition, he pointed it out to Murray. Murray did not testify as to these alleged violations. 

Bailey also examined the condition. After issuing the order and requiring corrective action, 

Sizemore proceeded to the #6 entry and discovered that the hillseam ran through the pillar into 

the #6 entry. He then added that condition to the order. Davis had not discovered that condition 

in the #6 entry during his preshift examination, and did not report or correct it. 

Order No. 7524394 

Order No. 7524394 was issued on August 31, 2004, pursuant to section 104(d)(2) of the 

Act, and alleges a violation of30 C.F.R. § 75.220(a)(l), which requires that mine operators 

develop and follow a Roof Control Plan approved by the MSHA District Manager. The violation 

is described in the "Condition or Practice" section of the citation as follows: 

The operator has failed to follow the approved Roof Control Plan. 

1. Steel channels or wooden crossbars were not used to support hillseams that 

ran diagonally across the intersections of the #6 and #7 entries, in the last open 

crosscut outby the pillar line on the 003 retreating section. 

2. The entry widths had not been reduced to the required 18 feet when subnormal 

·roof conditions (hillseams) were encountered in the.intersections of the #6 and #7 

entries, in the last open crosscut outby the pillar line, on the 003 retreating section. 

Ex. G-35. 

Sizemore determined that it was highly likely that a permanently disabling injury would 

occur as a result of the violation, that it was significant and substantial; that one employee was 

affected, and that the operator's negligence was high. The Secretary alleges that the violation 

was the result of Respondent's unwarrantable failure to comply with the standard. A civil 

penalty in the amount of $4,800.00 has been proposed for this violation. 

The Violation 

Davis testified that he conducted the preshift examination for the oncoming day shift· on 

August 31, 2004, and that he did not see a hillseam in the #7 entry. Tr. 918-19", · 922, He had 

discovered a hillseam in the #6 entry, and assured that it had been timbered of£ However, that 

condition was further inby the condition cited by Sizemore. Bailey described the condition in the 

#7 entry as a small crack that ran a few feet into the rib. It was thinner than a knife blade, and 

had no mud or water in it. He did not believe it was a hillseam, or that corrective action was 

29 FMSHRC 534 
needed. Tr. 931-32. Smith testified that, i~ response to Sizemore's issuance of the orders, he 

was assigned to timber off the #6 and #7 entries, which he did. Tr. 912. He saw one thin crack 

across entries #6 and #7, which he did not 'believe was a hillseam. Tr. 913-17. 

It is apparent from Bailey's and Si:nith's testinwny that ther~ was a thin crack or joint in 

the #7 entry that emerged in the #6 entry on the other side of the pillar. Neither Smith nor Bailey 

described any differences between the cracks in the #6 and #7 entries. While the joint had very 

limited displacement, and no mud or water in it, it apparently ran in a relatively straight line, and 

was not a mining-induced stress crack. I accept Sizemore's testimony, and find that the crack or 

joint in the #6 and #7 entries was .a, hillseam that was not supported as required in the Roof 

Control Plan. Consequently, the regulation was violated as alleged in the order .. 

S&S 

The Secretary has prov~n the violation of the standard. It is also clear that the violation 

contributed to a discrete safety.hazard, i.e., the possibility that a miner would have encountered 

the conditions·under·continued mining operations, and have been subjected to a risk of an 

unplanned roof fall. Any injury caused by the hazard would have been serious. Con.sequently, 

the analysis of whether the violation was S&S focuses upon the. likelihood that the ha.Zard would 

have resulted in an injury. Mathies, supra.· · 

Respondent was retreat mining at the time, and the cited conditions were at the location 

where mining was being done, i.e., the last open crosscut. The presence of a near vertical joint in 

the roofs rock strata could render the planned roof falls of the retreat mining process less 

predictable, raising the possibility of a fall outside the intended area. While the presence of . 

unsupported parallel joints :would have presented an obvious hazard in light of the June 16 

accident, it is doubtful that this single joint posed as much danger, particularly since it was 

supported by the pillar between entries #6 and #7. I find that it was reasonably likt::ly, not highly 

likely, that the hazard would result in an injury. Consequently, the violationwasS&S. 

Unwarrantable Failure - Negligence 

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated 

the law applicable to determining whether a violationis the result of an unwarrantable failure: 

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

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

connection with a :violation. InEmery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference," or a "serious lack ofreasom1ble care." Id. at 

2003-04; Rochester &Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991} 

("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52F.3d133, 136 (7th Cir. 

29 FMSHRC 535 
1995)] (approving Commission's urtwarrantable failure test). 

Whether conduct is "aggravated" in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, such as the length of time that the violation has existed, 

the extent of the violative condition, whetherthe operator has been placed on 

notice that greater efforts are necessary for compliance, the operator's efforts in 

abating the violative condition, whether the violation is obvious or poses a high 

degree of danger, and the operator's knowledge of the existence of the violation. 

See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ... ; Cyprus 

Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'don other grounds, 

195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 

1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody 

Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 

14 FMSHRC 1232, 1243-44(Aug~1992); Quiizland Coals, Inc., 10 FMSHRC 

705, 709 (June 1988). All oftherelevant facts and circumstances of each case 

must be examined to determine if an actor's conduct is aggravated, or whether 

mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because 

supervisors are held to a high standard ofcare, another important factor 

supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 

(Mar. 1998). 

The Secretary argues that the August 31 orders were the result of unwarrantable failures 

because Sizemore had "already issued three violations for the same or similar conditions between 

June 2004 and August 31, 2004," and he had "found two sets ofhillseams within one crosscut of 

the active pillar line." Sec'y Br. at 50, 51. The evidence does not support either prong of her· 

argument. Sizemore did not find two "sets" ofhillseams. He found one hillseam in each of the 

entries, which appears to have been the same crack or joint. Tr. 883-84. The reference to 

violations for the "same or similar conditions" is most likely to the citations/orders issued on 

June 21, July 12, and August 17. While the August 17 violation involved conditions similar·to 

those cited on August 31, there is no evidence in the record describing the conditions that were 

the subjects of the June and July violations. While those citations were addressed to hillseams, 

in the absence of some description of those conditions, it is unclear how much, if any, guidance · 

those citations provided on MSHA's new interpretation of the term. 

Bell County argues that the cracks in the #6 and #7 entries were very thin, had no mud or 

water in them, were not hillseams, "and there certfilnly Was no justification for high negligence, 

unwarrantable failure." Resp. Br. at 27. The ''n:o hillseam" argument has been rejected in the 

above discussion. However, the argument on negligence has merit. 

Bell County was adjusting to MSHA's newly expanded definition of the term hillseam. 

Cracks that had previously been treated as part of normal roof conditions, by both Bell County 

and MSHA, were treated as hazardous conditions on August 31, 2004. While the change may 

29 FMSHRC 536 
have begun earlier~ after the August 17 release ofMSHA's Report of Investigation of the fatal· 

roof fall and Sizemore's issuance of a.citation and imminent danger order, the new definition was 

in place. Sizemore's statement to Murray, that "everything is a hillseam," was relayed to the 

mine foremen as a directive on interpretation of the Roof Control Plan. 

Had the area .been mined only a day or two earlier, a11d adequate roof support not been 

installed, the Secretary would have had a good argum~nt that the violation was the result of an 

unwarrantable failure. However, the entries were lllined on advance much earlier, at a time when 

the roof support was considered to l>e in compliance \\jth the Roof Control.Plan by hotp MSHA 

and Bell County.24 The conditions became non-compliant with the plan only after MSHA 

changed the plan's definition of hillseams and established a record of consistent enforcement 

sufficient to put Bell County on notice that the term hillseam included such conditions. That 

occurred no earlier than August 18, 2004. I find that ]3ell County's negligence in failing to have 

supported the hillseam, as specified in the Roof Control Plan, was no more .than moderate. It was 

not the result of an unwarrantable failure to comply with the standard. 

OrderNo. 7524395 

Order No. 7524395 was issued on August 31~ 2004, pursuant to section 104(d)(2) of the 

Act, and alleges a violation of 30 CF.R. § 75.363(a), which requires, in part, thathazardous. 

conditions identified during an examination of working areas be posted with a conspicuous 

danger sign where anyone .entering the areas would pass. The violation is described in the 

"Condition or Practice" section of the citation as follows: 

The operator did not conduct a proper preshift examination. Hazardous 

conditions (inadequately supported hillseams that ran diagonally across the 

intersections of the #6 and #7 entries in the last open crosscut outby the pillar line 

on the 003 retreating section) were recorded in the preshift book, but were not 

corrected or posted with danger signs. 

Ex. G-36. 

Sizemore determined that ~t was highly likely that a permanently disabling injury would 

occur as a result of the violation, that it was significant and substantial, that one employee was 

affected, and that the operator's negligence was high. The Secretary alleges that the violation 

was the result of Respondent's unwarrantable failure to comply with the standard. Acivil 

penalty in the amount of $4,800.00 has been proposed for this violation. 

The Violation · 

The purpose of required preshift and onshift examinations is to identify hazardous 

conditions and ensure that they are corrected. Hillseams that have not been supported, as 

24 Bailey noted that the area had been mined about three years earlier. Ex. G-25. 

29 FMSHRC 537 
required by the Roof Control Plan, are hazardous conditions that should have been discovered in 

a preshift examination, noted in the report, and immediately corrected or posted' with 

conspicuous danger signs urttil they were corrected. 

As noted in the discussion of the prior order, there was a hillseam that ran across the 

#6 and #7 entries that had not been supported as required in the Roof Control Plan. Davis failed 

to identify it as a hillseam when he conducted the preshift examination. This particular condition 

was not reported, and was not noted on the pteshift examination report. Nor was it corrected or 

posted with warning signs. I find that the regulation was violated. 

S&S 

For the same reasons that the previous violation was found to have been S&S, I find this 

violation to be S&S. However, it was reasonably likely, rather than highly likely, that the hazard 

would result in an injury. 

Unwarrantable Failure - Negligence 

As noted above, as of August 31, Bell County was adjusting to MSHA' s newly expanded 

definition of the term hillseam in the Roof Control Plan. Davis was attempting to anticipate the 

breadth with which MSHA would interpret the term as he performed the preshift examination for 

the day shift on August 31. He identified such conditions in the #3 and #6 entries. He had them 

timbered off and reported them, even though he believed that they were "hairline cracks," and 

should not have been regarded as hillseams. Tr. 919. He did not identify the thin joint in the 

#7 entry that extended into the #6 entry as a hillseam. Bailey and Smith did not believe that the 

crack in the #6 and #7 entries was a hillseam. 

The Secretary argues that two witnesses called byBell'Couilty to describe the conditions 

hadn't examined the area closely.25 Sec'y Br. at 51. However, Bailey testified that he ''walked 

all the way over there and looked up underneath it, and looked at it that way as in from one side 

to the other." Tr. 936. He described it as thin crack that he did not believe was a hillseam. 

Smith stated that he was about eight feet away from the crack when he made his observations. 

Tr. 916. Sizemore, whose recollection of the condition was admittedly vague, had stated that his 

estimate of the opening width being one-halfinch was ''just a guess." Tr. 883, 892-93. 

I find that the failure to identify the crack in the #6 and #7 entries as a hillseam reflected 

an honest disagreement over whether the condition fell within the newly expanded- definition. 

Sizemore was most likely applying the definition broadly, erring on the side of inclusion. As 

Langley acknowledged, in light of the fatality he would look at suspect conditions "stronger than 

[he] normally would." Tr. 904. Sizemore may well have taken an even more expansive view of 

25 Sizemore explained the basis for his assessment of"high" negligence as to this order, 

i.e., he "had issued the same type of violation previously for improper pre-shift examination." 

Tr. 887. No further explanation was offered. 

29 FMSHRG538 
hillseams, since he had actually seen the conditions that later resulted in the fatality, and had not 

taken steps to address them. 

Many of the facto~s typically used in eV:alu~ting whether .a violation was the result of an 

unwarrantable failure have little application here. The condition existed for as long as three 

years. However, it had only recently become a violaμon, as MSHA's expanded definition ofthe 

term hillseams became enforceal:>le. It was not extensive. It wasS&S, but it did not pose a high 

degree of danger. Becal,lSe- of its nature, the condition itself was not obvious, nor was it 

obviously a violation. While a supervisor was i11.volved, and there had been other similar 

violations issued, the difficulty of differentiating between a common crack and a near vertical 

joint that was not weathered and did not have a foreign substance in it is a significant mitigating 

factor. 

I find that Bell County's negligence with respect to this violation was no more.than 

moderate .. The violation was not the result of an unwarr.antable failure to comply with the 

standard. 

The Appropriate Civil Penalties 

Bell County is a medium-sized mine, and its controlling entity, James River Coal 

Company, is a large mining entity. The Secretary introduced a printout from MSHA's computer 

database, an Assessed Violation History Report, showing that Respondent had 185 paid 

violations in th~24 month period from August 31, 2002, to August 30, 2004. Ex. G43. Of 

those violations, 79 were single penalty assessments, 97 were regulady.assessed~ and 9 were 

specially assessed. The Proposed Assessment mailed to Respondent showed slightly different 

numbers. However, it appears that Respondent's relevaμt violation history was moderate, or 

average. Bell County does not contend that payment of the penalties would impair its ability to 

continue in busine~s. All of the violations were promptly abated in good faith. The gravity and 

negligence associat~d with the alleged violations have been discussed above . .. · . 

... Order No. 7538678 was affirmed. However, it was found not to have been S&S or the 

result of the operator's unwarrantable failure. The violation was unlikely to result in an injury, 

and the operator's negligence was found to. have been high. Co;nsequently, the order will be 

modified to a citation issued under section 104(a) of the Act. A civil penalty of $5,300.00 was 

proposed by the Secretary. Upon consideration of the above, and.the factors enumerated in 

section 1 IO{i) of the Act, I impose a penalty in the amount of $2,500.00. 

Order No. 7524394 was affirmed as an S&S violation. However, the gravity was slightly 

lower than alleged, because a reasonably serious injury was reasonably likely, rather than highly 

likely, to occur. It was also found not to be the result of the operator's unwarrantable failure, and 

the operator's negligence was moderate. -Consequently, the order will be modified to a citation 

issued under section 104{a) of the Act. A civil penalty of $4,800.00 was proposed by the 

Secretary. In light of the slightly lower gravity and the lower negligence finding, and upon 

consideration of the factors enumerated in section 11 O{i) of the Act, I impose a penalty in the 

29 FMSHRC 539 
amount of$2,000.00. 

Order No. 7524395 was affirmed as an S&S violation. However, the gravity was slightly 

lower than alleged, because a reasonably serious injury was reasonably likely, rather than highly 

likely, to occur. It was also found notto have been the result of the operator's unwarrantable 

failure. The operator's negligence was moderate. Consequently, the order Will be modified to a 

citation issued under section 104(a) of the Act. A civil penalty of $4,SOO.OO was proposed by the 

Secretary. In light ofthe slightly lower gravity and the lower negligence finding, and upon 

consideration of the factors enumerated in section 11 O(i) of the Act, I impose a penalty in the 

amount of$2,400.00. 

Respondent Bell County withdrew its Notices of Contest and requests for hearing with 

respect to Citation Nos. 7538677, 7538679 and 7538680, and Order No. 7538681. It agreed to 

pay the proposed penalties for those violations; a total of $6,336;00. The Secretary concurred 

with the proposed settlement of those alleged violations. I have considered the representations 

and evidence submitted and conclude that the proffered resolution is appropriate under the 

criteria set forth in section 11 O(i) of the Act. Accordingly, the related Contest Proceedings will 

be dismissed and Bell County will be ordered to pay civil penalties in the amount of $6,336.00 

for those violations. 

ORDER 

Citation Nos. 7538674, 7538675, 7538676 and 7524384, and Order No. 7524383 are 

hereby VACATED and the petitions as to those citations are hereby DISMISSED. 

Order Nos. 7538678, 7524394 and 7524395 are AFFIRMED, as modified, and are · 

further modified to citations issued pursuant to section 104(a) of the Act. Respondent Bell 

County Coal is directed to pay civil penalties totaling $6,900.00 for those violations; 

Respondents Davis, Bailey and Belcher are directed to pay civil penalties in the amount of 

$200.00 each. Payment shall be made within 45 days. 

With respect to the three citations and one order as to which Respondent Bell C~unty • 

withdrew its Notices of Contest and requests for hearing, Docket Nos. KENT 2004-320-R, 

KENT 2004-321-R; KENT 2004-322-R and KENT 2004-324-R are hereby DISMISSED, and 

Bell County is ordered to pay civil penalties totaling $6,336.00 within 45 days. 

29 FMSHRC 540 
Distribution (Certified Mail): · '': 

Marybeth Zamer Bemui, Esq., Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department 

of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

Melanie J. Kilpatrlck, Esq~, Rajkovich;. Williams, Kilpatrick & True, PLLC; 2-333 Alumni Park 

Plaza, Suite 310, Lexington, KY 40517 · :· 

Charles E. Ricketts, Jr~, Esq., Ricketts & Platt, PLLC, Ridgeway Building, 4055 Shelbyville 

Road, Louisville, KY 40207 

/mh 

29 FMSHRC 541 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA), 

Petitioner 

v. 

EMERALD COAL RESOURCES, LP, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION {MSHA), 

Petitioner 

v. 

June 27, 2007 · 

. EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

DocketNo. PENN-2007-251-E 

Citation No. 7020004; 5/25/2007 

Mine ID 36-05466 

Emerald No. 1 Mine 

EMERGENCY RESPONSE PLAN 

DISPUTE PROCEEDING 

Docket No. PENN-2007-252-E 

Citation No. 7020005; 5/25/2007 

CUMBERLAND COAL RESOURCES, LP, 

Respondent 

Mine ID 36-05018 

Cumberland Mine 

DECISION 

Appearances: Stephen Turow, Esq., Gayle Green, Esq., Jonathan Hammer, Esq., 

U.S. Department of Labor, Office of the Solicitor, Arlington, Virginia, on behalf 

of Petitioner; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, 

on behalf of Respondents; 

Judith Rivlin, Esq., for United Mine Workers of America, appearing as amicus 

curiae. 1 

Before: Judge Zielinski 

These cases are before me on Referrals of Emergency Response Plan Disputes, by the 

Secretary of Labor ("Secretary"), pursuant to section 316(b)(2)(G) of the Federal Mine Safety 

1 The United Mine Workers of America moved to appear as amicus curiae, for the 

purpose of filing a post-hearing brief The parties did not object. The motion is granted, the 

brief is accepted for filing, and was considered in this decision. 

29 FMSHRC 542 
and HealthAct of 1977, 30 U.S.C. § 876(b)(2)(G) ("Act"). At issue are citations issued on 

May 25, 2007, charging each of the Respondents, Emerald Coal Resources, LP, ("Emerald") and 

Cumberland Coal Resources, LP, ("Cumberland") with violations of the Act by failing to adopt 

response and preparedness plc1ns that timely provide supplies of post-accident breathable air. 

A hearing was held in Pittsburgh, Pennsylvania on June 12, 2007, wherein the parties submitted 

all relevant materialregarding the dispute. For the reasons set forth below, the citations are 

affirmed. 

Findings of Fact - Conclusions of Law 

In response to a series of tragic accidents in which underground coal. miners lost their 

lives, Congress enacted the Mine Improvement and New Emergency Response Act of 2006 

("MINER Act"). 2 The MINER Act amended section 316 of the Mine Safety and Health Act of 

1977, to require, inter alia, that underground .. coal mine operators develop and adopt response 

and preparedness plans (hereinafter "Emergency Response Plans" or "ERPs"), and submit them 

to the Secretary for approval and periodic review. The MINER Act became effective on June 15, 

2006, and the initial ERPs were to be adopted.and submitted by August 14, 2006. The Act 

requires that ERPs include several provisions intended to enhance the ability of trapped miners to 

survive an accident, including communication systems, a system for tracking miners, supplies of 

breathable air, and lifelines. 

The requirements forpost-accident breathable air are stated in section 316(b)(2)(E)(iii) of 

the Act: 

Post-accident breathable air. -- The plan shall provide for -

(I) emergency supplies .of breathable air for individuals trapped 

underground sufficient to maintain such individuals for a sustained 

period of time; 

(Il) in addition to .the 2 hours of breathable air per miner . 

required bylaw under the emergency temporary standard as of the 

day before the date of enactment of the Mine Improyement and 

New Eme.rgency Response Act of 2006, caches of self-rescuers 

providing in the aggregate not less than 2 hours per miner to be 

kept in escapeways from the deepest work area to the surface at a 

distance of no further than an average miner could walk in 30 

minutes 

2 P.L. 109-236 (June 15, 2006). 

29 FMSHRC 543 
Section316(b)(2)(C) of the Actprovides that, in reviewing and approving ERPs, the 

Secretary is required to: 

take into consideration all comments submitted by miners or their representatives, 

Approved plans shall -

(I) afford miners a level of safety protection at least consistent 

with the existing standards, including standards mandated by law 

and regulation; 

(ii) reflect the most recent credible scientific research; 

(iii) be technologically feasible, make use of currently 

commercially available technology and account for the specific 

physical characteristics of the mine; and 

(iv) reflect the improvement in mine safety gained from 

experience under this Act and other worker safety and health laws. 

Section 316(b)(2)(G) of the Act provides a mechanism for expeditiously resolving 

disputes between operators and the Secretary over the content ofERPs. 

Plan dispute resolution 

(I) In general 

Any dispute between the Secretary and an operator with respect 

to the content of the operator's plan or any refusal by the Secretary 

to approve such a plan shall be resolved on an expedited basis. 

(ii) Disputes. 

In the event of a dispute or a refusal [by the Secretary to approve 

a provision of an ERP,] the Secretary shall issue a citation which 

shall be immediatelyreferred to a Commission Administrative Law 

Judge. The Secretary and the operator shall submit all relevant 

material regarding the dispute to the Administrative Law Judge 

within 15 days of the date of the referral. The Administrative Law 

Judge shall render his or her decision with respect to the plan 

content dispute within 15 days of the receipt of the submission. 

After considerable negotiation; and submission of several alternative proposals, 

Respondents submitted ERPs specifying that post-accident breathable air would be provided by 

locating refuge chambers within 2,000 feet of each working section, capable of providing 96 

hours of breathable air for miners, and that "Purchase orders ... will be submitted to MSHA 

within 60 days of the approval of the Emergency Response Plan." Ex. G-13. Cumberland's last 

proposed ERP was submitted on May 22, 2007, and Emerald's was submitted on May 24, 2007.3 

3 Emerald and Cumberland are affiliated companies of Foundation Coal, and their 

efforts to comply with the MINER Act and interactions with MSHA have been substantially 

identical. Tr. 107, 209. 

29 FMSHRC 544 
Ex. G-13, G-25. The Secretary approved all parts of the ERPs' post-accident breathable air 

provisions, except the quoted language specifying that purchase orders would be submitted 

within 60 days of approval. Ex. G-19, G-31. 

On May 25, 2007, the Secretary's Mine Safety.and Health Administration ("MSHA") 

issued citations to Respondents charging them with violations of section 316(b) of the Act.4 The 

citations, as amended, directed that the violati0:ns J:>e abated within ten days, i.e., by June 4, 2007. 

On May 30, 2007, pursuant to the Act, and Commission Procedural Rule 24, 29 C.F.R 

§ 2700.24, the Secretary referred the plan content disputes to the Commission. The referrals pray 

that the citations be affirmed and that Respondents be .ordered to amend their ERPs to establish a 

10-dayperiod within which to provide purchase orders. Respondents' responses to the referrals 

pray that the citations be vacated and that the Secretary be directed to approve their ERPs with no 

provisions for purchase orders. 

History of the Post-accident Breathable Air ERP Provisions 

As noted above, the Act's provisions requiring post-accident breathable air are phrased in 

general terms. ERPs~ which were to be adopted and submitted for review by August 14, 2006, 

were required to provide for emergency supplies of breathable air sufficient to.maintain 

4 Citation No. 7020004 was issued to Emerald, and Citation No. 7020005 was issued to 

Cumberland. Both contained substantially identical language. Citation No. 7020004 states, in 

the "Condition or Practice" section: · 

Emerald Coal Resources, L.P. violated 3 l 6(b )(2) of the Federal Mine Safety and 

Heatth Act (Mme Act), 30 U.S.C. 876(b)(2) by failing to deveiop, adopt, and 

submit to MSHA an emergency response plan (a/k/a "accident response plan") 

that timely provides a means for providing post· accident breathable air to 

individuals who may be trapped underground. After significant discussion, 

Emerald Resources has refused to promptly provide purchase orders for the refuge 

chc;unbers 'contemplated in its May 24, 2007 ERP or, in the alternative, to specify. 

other acceptable means for promptly providing post accident breathable air for 

trapped miners. MSHA and Emerald are in dispute concerning period that is 

reasonable for the operator to take actions necessary to implement the post 

accident breathable air portion ofits ERP. Thus this citation is being issued 

pursuant to 104(a) and 316(b)(2)(G)(ii) of the Mine Act. . 

MSHA has approved all portions of Emerald's May 24, 2007 ERP with the . 

exception of the provisions in the Post-accident Breathable Air portion of the ERP 

. that states the date on which Emerald will provide purchase orders for the refuge 

chambers. · · ·· · · 

29 FMSHRC 545 
individuals trapped underground for a sustained period of time. On July 21, 2006, MSHA issued 

Program Policy Letter P06-V-8 which stated: 

A. Maintenance of Individuals Trapped Underground 

The ERP should address the amount of post-accident breathable air necessary to 

maintain individuals trapped underground for a sustained period of time. ·oxygen, 

compressed air, or other alternatives may be used to meet this requirement. 

The Agency will need to thoroughly review.and evaluate alternatives to assure 

that all safety and health risks are taken intO consideration. Additional time and 

information is needed to make decisions on the type, amount and location of postaccident breathable air to be furnished for trapped miners. 

The Agency will solicit further information from the mining community through a 

Request for Information (RFn to assist in assuring that ERPs provide safe and 

reliable post-accident breathable air supplies for trapped miners. Subsequent to 

the RFI, MSHA will provide additional guidance on an expedited basis to address 

the availability ofreadily accessible breathable air that would be sufficient to 

maintain miners trapped underground for a sustained period of time; · 

Stip. 17.5 

The initial ERPs submitted by Respondents on August 14, 2006, addressed the postaccident breathable air requirement by citing the caches of Self-Contained Self-Rescuers 

("SCSRs"), which provide up to five or six hours of breathable air. On August 30, 2006, MSHA 

published a request for information in the Federal Register and sought comments on postaccident breathable air by October 16, 2006. Stip. 19; ex. G-1. On October 24, 2006, MSHA 

published Program Information Bulletin: P06-V-10 which stated in part: · 

On August 30, 2006, MSHA published a Request for Information (RFn in the 

Federal Register seeking further information from the mining community on . 

''topics related to post-accident breathable air that would be sufficient to maintain 

miners trapped underground for a sustained period of time." Once MSHA is able 

to review the information received, the Agency will provide additional guidance. 

In the meantime, however, mine operators shall gather information from available 

resources and provide for emergency supplies of breathable air. 

Stip 20; ex. G-2. On February 8, 2007, MSHA issued Program Information Bulletin P07-03 

(''PIB"), which included several attachments, and provided operators for the first time with 

comprehensive information concerning how to provide breathable air for individuals who may be 

trapped underground. Stip 21; ex. G-4, G-5, G-6, G-7. The PIB stated that it was advisory in 

5 The parties submitted Joint Stipulations of Fact, which will be referred to as "Stip." 

29 FMSHRC 546 
nature and identifi~ several methods that might be used to.provide post-:-accident l>re~thable air 

in safe havens, including bore holes, compressed air lines, compressed air and oxygen cylinders, 

and chemical oxygen generators. Safe havens could be prefabricated refuge chambers, or .prebuilt or readily constructed barricades. It also specified that breathable air sources should be 

located within 2,000 feet of working sections, and that a96-hoursupply ofbreathable air should 

be provided for each miner, almost 20 times the air supply provided by SCSRs. The PJB 

established a deadline of March 12, 2007, as the date on which operators were required to submit 

revised ERPs for MSHA's review. Shortly before that deadline, the State ofWestVirginia 

published a listing of refuge· chambers that it had approved for meeting its post-ac;:cident 

breathable air requirements. Ex. R-109. MSHA accepted use of state-approved chambers in 

ERPs. Tr. 72. 

In the absence of a feasible means of providing a continuous supply of fresh air, 

e.g., through a borehole or compressed air line, available options for supplying post-accident 

breathable air consist of self-contained refuge chambers or barricades stocked with compressed 

air, compressed oxygen and C02 scrubbing systems. While six models of chambers have. been 

approved by West Virginia and accepted by MSHA, there are currently no manufactured refuge 

chambers commercially available. Tr. 131, 246. However, several vendors have demonstration 

models. Refuge chambers would be placed in crosscuts near escapeways within 2,000 feet of 

working sections. Barricades would be either pre-constructed, or materials··forconstructing them 

would be stored in appropriate locations, along with other necessary equipment and supplies .. 

Most mines have barricade and other supplies on hand. The remainder of the items are readily 

available, although there are currently some delivery problems with C02 scrubbing systems. 

Tr. 76, 165-67, 174, 177. 

On March 12, 2007, Cumberland and Emerald submitted ERPs that specified thatrefuge. 

chambers would be used to provide breathable air.fortrapped miners. Stip. 24, 25. 

Respondents'· decisions to purchase refuge chambers, which are more expensive than 

barricade/supply systems, was based upon Foundation Coal's assessment that a "turn key'' 

system would be far more likely to function as planned. As John M. Gallick, its vice-president 

for safety and health, explained, there. was concern that miners who had unsuccessfully expended 

considerable effort to escape, would not be able to effectively erect barricades, purge air, and 

perform other time and effort consuming actions while wearing SCSRs and working in a 

contaminated atmosphere under very high stress. Tt. 227"'29, 265-67. 

On March 28, Cumberland submitted a revised ERP specifying that refuge chambers . 

would be "maintained within 2,000 feet of each working section capable of providing 96 hours of 

breathable air for miners working on that section (up to 30 miners)." Ex. a.:. 9. Emerald 

submitted a substantially identical plan on April 2. Ex. G-22. Respondents' ERPs specified that 

the chambers would be ordered within 60 days ofMSHA's approval of the chambers.6 MSHA 

6 No refuge chambers have been tested by MSHA, and it has not approved any shelters 

for use in underground coal mines pursuant to its authority to approve equipment as suitable and 

29FMSHRC 547 
told Cumberland and Emerald representatives that, while refuge chambers were an acceptable 

means of isolating miners from hazardous environments and providing breathable air, the agency 

would not approve a provision in an ERP without submission of purchase orders for equipment . 

for the refuge chambers. 7 On April 20, Respondents solicited bids on an expedited basis from 

three providers of refuge chambers,· including the vendor previously identified. Foundation Coal 

had selected inflatable chambers because they would be more suitable for their mines in West 

Virginia, which mined coal seams 42 inches high and were not "gassy." They proposed to use . 

the same shelters in the Emerald and Cumberland mines in order to remain consistent with 

equipment and training. Tr. 233. They have since reconsidered and believe that larger rigid 

refuge chambers would be more appropriate for their mines, which are in the gassy Pittsburgh 

seam where secondary explosions are more likely to occur. Tr. 235. 

Further communications occurred between MSHA and Respondents. On April 28, 

Respondents submitted revised ERPs representing that they were "in the process of ordering 

refuge chambers"from a vendor, and further specifying a specific model number. Ex. G,.. lQ; 

G-23. The memorandum forwarding Cumberland's revised plan referred to prior correspondence 

and a meeting that occurred on April 17, and stated that a purchase order would not be able to be 

submitted by close of business. It represented that a ''terms and conditions" package would be 

sent to the vendor in less than 48 hours, and that a purchase order would be written when the 

terms and conditions had been agreed to. Ex. G-15. MSHA believed that Cumberland would 

supply a purchase order within a few days. On May 3, no purchase order had been submitted, 

and Cumberland was requested to supply, within five working days, a purchase order and a 

scheduled delivery date. Ex. G-16. 

Questions arose in mid-April with respect to C02 scrubbing systems that were being used 

in some shelters. As noted in the PIB, C02 scrubbing is essential to preserve a life sustaining 

atmosphere in shelters without a continuous supply of fresh air. C02 scrubbing can be 

accomplished through active (fan driven) or passive (curtain) systems using one of two 

compounds that absorb C02, soda lime or lithium hydroxide. However, both compounds are 

caustic, and MSHA determined that handling of bulk compounds in a closed environment would 

pose an unacceptable risk. Tr. 171. Soda lime was used in bulk for at least one system. 

Respondents also developed concerns about whether quantities of soda lime sufficient to last 96 

hours were being supplied. By April 25, MSHA determined to advise its district managers not to 

approve any post-accident breathable air ERP provisions that used bulk soda lime for C02 

scrubbing. Ex. R-47; tr. 85, 129-30. The chamber vendor and compound suppliers reacted 

promptly, encapsulated the soda lime, and eliminated the bulk compound problem within seven 

safe for use in mining environments. Stip. 28 .. 

7 Most of MSHA' s Districts, including District 4 in which Foundation's West Virginia 

mines are located, do not insist on the submission of purchase orders as part of the ERP. 

Stip. 26; ex. 45; tr. J23. They consider the issuance of a purchase order in determining whether 

to cite an operator for failure to timely implement its ERP. 

29 FMSHRC 548 
to ten days. Tr. 86-87; ex. G-37 .. There is some question as to wheth~r, or when, Respondents 

were advised that the issue-had been resolved. Tr. 31_7; ex. G-12, G-37 .. 

Another question .raised by Respondents deals with temperature. An attachment to the 

PIB, notes as a ~~Safe Haven Assumption" a maximum tempeqi.ture of 95 degrees. Ex. G-5. 

It also notes that ''Not all mines will be able to successfully adopt all of these recommendations · 

due to their inherent mining conditions." Ex. G-5 at 1. The. reaction whereby lithilnn hydroxide 

absorbs C02 gives off more heat than does soda lime. Lithium hydroxide i~ typically .· 

impregnated into curtain material that is hung in the refuge,area. It is a passive system, and 

simply absorbs C02 from the air. The heat generated produces convection air c~ents that make 

the curtains more efficient at scrubbing C02• Respondents were concem~d that heat generation 

might result in excessive temperatures. However, there is no evidence that this is anYthing other 

than a theoretical problem. One such system has beeμ. tested in a chamber, apparently 

successfully. Tr. 242. 

The C02 scrubbing questions prompted Respondents to reevajuate their plans to supply 

breathable air. The vendor they had been working with had been using a bulk soda lime 

scrubbing system. Tr. 260; 313. The State of West Virginia had requested that the National 

Institute of Occupational Safety and Health ("NIOSH") conduct tests on shelters it had 

approved.8 Foundation Coal also decided to do its own testing ofC02 scrubbing systems. 

On May 9, Cumberland submitted a revised ERP that represented that it was.evaluating refuge 

chambers of three vendors, and represented that a purchase order woμld be issued once testing 

verified that the C02 scrubbing systems met the requirements of the PIB. Ex. G-11. 

MSHA viewed Cumberland's change in position, from submitting a purchase order for a 

specified chamber to evaluating several chambers with submission of a purchase order in 60 

days, as a substantial retreat from any comnritnient to promptly implement its ERP. Tr. 104, 112. 

All of the mine operators in District 2 that had opted for chambers had already supplied purchase 

orders, and MSHA felt that Respondents should not be an exception. Tr. 105. On May 14, 

MSHA advised Cumberland that it would not approve the ERP, which committed to "purchase 

of essential protective mechanisms at an undetermined and distant future date," and that 

"a purchase order for material/equipment necessary to comply with [the post-accident breathable 

air] provision must be obtained and provided." Ex. G-17. Similar instructions on the 

requirement for a purchase order were commumcated to Emerald on May 16. Both Respondents 

had also been previously advised· of the requirement. Stip. 29, 30. 

8 Section 13 of the MINER Act requires NIOSH to conduct resear~h on refuge 

alternatives, including shelters, and submit a report by D~cember 15, 2007. Within 180 days of 

receipt of the report, MSHA is required to provide a description of any actions the Secretary 

intends to take based upon the report. NIOSH circulated a draft protocol· for its testing of refuge 

chambers on June I, 2007. Stip. 27; ex. R-10. Testing was reportedly scheduled to commence 

on June 18 and be copcluded byAugust 31. Tr. 249. Respondents had tq a,bandon·efforts to do 

their own testing because of delivery problems for C02 scrubbing materials. Tr. 276. 

29 FMSHRC 549 
On May 18, both Respondents submitted revised ERPs indicating that they were in the 

process of evaluating shelters, and would submit purchase orders for shelters within 60 days of 

approval of their ERPs. Ex. G-12, G-24. The cover letters for the submissions requested 

information on commercially available C02 scrubbing systems, and protested the requirement for 

purchase orders. Stip. 31, 32; ex. G-14, G-29. On May 22, MSHAadvised Cumberland that an 

impasse may have been reached with regard to its post-accident breathable air ERP provision, 

and requested clarification of the plan. Ex. G-18; stip. 33. Ori May 22, Cumberland submitted a 

revised plan, and again proposed to submit a purchase order within 60 days of plan approval. 

Stip. 34; ex. G-13. Emerald had similar communications· with MSHA and submitted its revised 

ERP on May 24~ Stip. 35, 36; ex; G~25: On May 23 and 25, MSHA notified Cumberland and 

Emerald respectively, that the post-accident breathable air portions of their latest ERPs were 

approved, with the exception of the 60-day purchase order submission, which had to be 

substantially shortened, e.g. to two days: ; Neither Respondent agreed to further reduce the period 

for submission of purchase orders, which triggered the instant citations and these proceedings. 

Conclusions of Law -Further Factual Findings 

The Secretary contends that the proper standard of review is whether the Secretary's 

refusal to approve the 60-day purchase order provision of the ERPs, and her requirement that 

purchase orders be submitted within ten days, were arbitrary and capricious. She accepted the 

burden of proof on those issues. Sec'y Legal Statement at 3; 9 ·Respondents contend that Section 

316(b )(2) of the Act is unconstitutionally vague, that the Secretary's use of the Program 

Information Bulletin to evaluate ERPs is contrary to law because it was not the subject of notice 

and comment rulemaking, and that the Secretary's refusal to approve the ERPs was contrary to 

law. As to the latter point, they dispute applicability of the "arbitrary and capricious" standard, 

contending that it "ignores the statutory criteria and is too weighted in the Secretary's favor." 

Resp. Br. at 28 n.20. However, they do not offer an alternative. 

The Scope of these Proceedings 

Conimission Procedliral Rule 24 specifies that "The scope of [a hearing on an ERP 

dispute] is limited to the disputed plan provision or provisions.'' Prior to the hearing, 

Respondents indicated a desire to litigate, in this proceeding, the validity of the citations' special 

findings dealfog with negligence and gravity, and the Secretary requested that civil penalties be 

imposed if the violations were affirmed. As noted at the hearing, those issues will not be 

addressed in this proceeding. Tr. 17-26. The process established in the MINER Act for 

expeditious resolution of plan disputes was intended to quickly resolve disputes concerning the 

specific contents bf ERPs, so that the benefits of the Act could be realized by miners. 

Entertaining other issues would unduly complicate these special proceedings and would detract 

9 The Notice of Hearing required the parties to submit prehearing statements and 

memoranda of law addressing the issues to be decided, and the applicable legal standards, 

including burden of proof. 

29FMSHRC 550 
from the fair and efficient resolution of plan content disputes. 10 

For the same reasons, Respondents' constituti():nal challenge to the legislation and their 

procedural challenge to the PlB will not b~ entertained'. II It should be noted that the PIB is the 

subject of a challenge as improper rulemak:ing in the United States Court of Appeals for the 

District of Columbia Circuit, Docket No. 07-1068. Stip. 23. More~yer, the Act's expedited plan 

dispute resolution process is intended to resolve disagreements over plan contents that have been 

negotiated to an impasse, All aspects of the post-accident breathabl~,<:rir portions of the ERPs, 

with the exception of the 60-day purchase order submission provision were approved by the 

Secretary. There is no plan content dispute with respect to any aspectofthe]?IB.12 

I accept the Secretary's formulation of the issues. She has t.hehurden of proving that the 

refusals to approve the specific plan provision~ ~t issue, and to require _abatement within ten days, 

were not arbitrary and capricious. C. W. Mining Co., 18 FMS~C 1740, 1746 (Oct. 1996) 

(absent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the 

inclusion of specific provisions as a condition of the plan's approval); Monterey Coal Co., 

5FMSHRC1010, 1019 (June 1983) (MSHA's withdrawal ofimpoundment plan apprqval was 

not arbitrary and capricious). 

10 Respondents contested issuance of the citations pursuant to section 105(d) of the Act. 

Separate Commission case files have been established for those proceedings, Emerald Coal 

Resources,·LPv. Secretary of Labor, Docket No. PENN 2007-257-R;-Cumberland Coal 

Resources, LP v. Secretary of Labor, Docket No. PENN 2007-258-R. Challenges to the special . 

findings, as well as the constitutional and other issues Respondents seek to raise, can be litigated 

in those cases, or in the course of any subsequent civil penalty proceeding. 

11 · I decline to reach Responde:nts' constitutional challenge to the statute, which is 

couched in terms of fair notice. However, as to any fair notice,, due process, argument 

Respondents may be advancing as to the particular enforcement actions here, they clearly 

received actual notice of the district manager's requirement that purchase orders were required in 

substantially less than 60 days, well before enforcement action was taken. Actual preenforcement notice of the Secretary's position satisfies due process. Consolidation Coal Co., 

18 FMSHRC 1903, 1907 (Nov. 1996); General Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C.Cir. 

1995). 

12 Respondents.contend that a provision of the PIB, .specifying that ERPs must be 

implemented within 60 days brings the validity of the PIB into question. I disagree. While the 

Secretary's refusal to approve the disputed provisions was motivated by a desire to secure earlier 

implementation, the displlted plan provisions d() not implicate the PIB. As Respondents note, the 

purchase order requirement was specific to ERPs that called for.rescue chambers and was 

"contained in no writing other than the plan responses." Resp. Br. at 25 n.18. 

29 FMSHRC551 
Resolution of the Emergency Response Plan Disputes 

The standards for resolving plart approval disputes are well settled. While the Secretary 

of Labor retains the ultimate authority and responsibility to determine the contents of the plan, 

her discretion is not unbounded. In discussing disputed provisions <>fan operator's· ventilation 

plan, the Commission stated: 

The requirement that the Secretary approve an operator's mine ventilation 

plan does not mean that an operator has no option but to acquiesce to the 

Secretary's desires regarding the contents of the plan. Legitimate disagreements 

as to the proper course of action are bound to occur. In attempting to resolve such 

differences, the Secretary and an operator·mustnegotiate in good faith fot a 

reasonable period concerning a disputed provision. Where such good faith 

negotiation has taken place, and the operator and the Secretary remain at odds 

over a plan provision, review· of the dispute may be obtained by the operator's· 

refusal.to adopt the disputed provision, thus triggering litigation before the·· 

Commission. PennAllegh Coal Co.,3FMSHRC 2767, 2773 (Dec. 1981). 

Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985). 13 

The Report of the Senate Committee on Health, Education and Welfare on the MINER 

Act, published on December 6, 2006, indicates that the established cooperative plan 

development, review and approval process was intended to apply to ERPs,.includingthe 

resolution of disputes through issuance of a citation for a "technical violation." S. Rep. No. 109-

365, at 4-5 (2006). 14 That process was followed by the parties here. Extended negotiations took 

place over the content of the ERPs, with each Respondent submitting multiple draft documents. 

As early as March, there was agreement on virtually all aspects of the post-accident breathable air 

portions of the plans. The only disputes were whether and when purchase orders would be 

required. Respondents committed to provide purchase orders, but the parties remained at odds 

over the time period. Respondents did not retreat from their "60 days following plan approval" 

position. The Secretary sought significant reductions, at one time proposing submission within · 

two days after plan approval, and eventually establishing ten days as the time to abate the 

citations. 

13 Both the Secretary and the operator are obligated to engage in good faith negotiations 

and an operator who fails to do so may be precluded from challenging the denial of a proposed 

amendment. Id. and see C. W. Mining Co., 18 FMSHRC at 1746-47; Peabody Coal Co., 

15 FMSHRC 381, 387-88 (March 1993). . 

14 A copy of the report was submitted as an exhibit by Respondents following the 

hearing. Ex. R-48. The Secretary·did not object t6 its adinission. It is admitted as part of the 

hearing record. 

29 FMSHRC 552 
There is no question that Congress intended to promptly secure a substantial increase in 

the amount of post-accident breathable air available to trapped miners. The MINER Act's postaccident breathable air provisions are not couched with any delayed time frame language, such as 

the three years allowed for installation of flame-resistant directional life lines and wireless postaccident communication systems. 30 U.S.C. § 876(b)(2)(E)(iv) and (F)(ii). Provisions for postaccident breathable air were required to be included in ERPs adopted and submitted for approval 

by August 14, 2006 .. Moreover, post-accident breathable airis referred to in the "Immediate 

Requirements" .section of the Senate Report. S. Rep. 109~365, at 6-7. The expedited plan 

dispute reso.lution process is further evidence that Congress inte11ded that post-accident 

breathable air be_ expeditiously provided. 

By the time the PIB was issued, in February 2007, MSHA had conducted a great deal of 

research on methods to provide post-accident breathable air, including the provision of · 

breathable air in applications ranging :ff<>m coal and metal mining to submarines and spacecraft. 

Tr. 152-55.: It also had solicited and n::ceived information from the mining community. It was 

aware that there were tried and proven mechanisms to provide breathable air for extended 

periods of time, that were then commercially available. 

Mine operators had to provide breathable air in safe havens, either barricades or refuge 

chambers. Barricades have been a method used by trapped miners in the past to enhance 

survival. All of the materials to provide a sustained supply ofbre.athable air in a barricade-type 

shelter are either already maintained by operators, or. are readily available. The only exception is 

C02 scrubbing materials, as to which there may be some deliv(':ry problems. 

Prefabricated refuge chambers are a more recent development, but would work in much 

the same way as a barricade. However, there are currently no production models available, and it 

was clear that there were going to be delivery back-logs. Tr. 75. Significant delivery delays were 

expected, much more so than with C02 scrubbing materials. The district manager felt that filling 

in part of a component system would be quicker and easier than getting a whole system 

delivered~ Tr. 142-43. Donald Foster, who was the point person for the district manager on 

ERP approvals, was of the opinion that under current market conditions it would "most 

definitely'' take "significantly longer" to get delivery of a refuge chamber than components of a 

barricade system. Tr. 147. Purchase orders had been required for additional SCSRs, when 

manufacturers were overwhelmed with orders and delivery problems existed .. Tr. 78, 131. 

In light of these considerations, the district manager decided to require submission of· 

purchase orders for refuge chambers as part of the ERP, in order to secure assurance that the 

operator was actually proceeding to implement the plan. He did not require purchase orders for 

components of barricade-type systems as part of an ERP. Under his approach, ERPs have been 

approved for 31 of the 33 underground coal mines in MSHA District 2. The only exceptions are 

Emerald and Cumberland. Tr. 64-65. Seventeen of the operators chose to use barricade systems. 

Their ERPs have been approved and they should be well on their way to actually implementing 

their plans. Fourteen ofthe operators chose rescue chambers and, by mid-May, all of them had 

29 FMSHRC 553 
submitted purchase orders for the chambers they had chosen, either with their ERPs, or within 

ten days thereafter. Tr; 64-65, 74, 106. Those ERPs have also been approved and 

implementation.will occur upon delivery of the chambers. 

MSHA engaged in substantial negotiations with Respondents over the course of two 

months. Respondents had opted for refuge chambers in their March 12 ERPs, and were on the 

verge of providing purchase orders for specific refuge chambers as of April 20. Questions 

regarding the bulk soda lime C02 scrubbing systems that were used in those chambers, and 

MSHA's direetive that such systems would not be approved, legitimately caused Respondents to 

delay moving forward. Those questions were quickly resolved, and MSHA expected a 

resumption of the process and prompt delivery of purchase orders. However, Respondents then 

began to reevaluate their choices of shelters. Because of the prevalence of methane in their 

mines and the likelihood of roof falls and secondary explosions, considerations known since the 

beginning of the process, they decided that rigid refuge chambers would be more preferable, and 

had actually settled on a vendor. Tr. 234-36, 292-93. As Gallick explained, the change in 

thinking was due to ''more thought about the application" and "less corporate thought process" 

about getting the same shelters. Tr. 291-92. MSHA viewed Respondents' changed approach as 

a substantial regression in any commitment to promptly provide enhanced supplies of postaccident breathable air. 

MSHA's district manager had no reason to doubt the effectiveness of the C02 scrubbing 

systems, which would be used in barricade or refuge chamber applications. The disapproval of 

the bulk soda lime systems had nothing to do with their effectiveness. His interest was in 

promptly securing the substantial enhancements to supplies of post-accident breathable air that 

were required under the MINER Act, as informed by the PIB. By May 25, all mine operators in 

his District had approved ERPs, with the exception of Respondents. 

Respondents could have chosen barricade-type systems, had approved ERPs, and have 

largely implemented their plans. No concerns about C02 scrubbing systems should have deterred 

them, because if they proved less effective more material could simply have been provided, arid 

the heat issue was not a concerti for the larger barricaded areas. Tr. 281. They chose to purchase 

rescue chambers, and provided good reasons for doing so. ·The district manager did not veto that 

choice, even though it meant that delivery delays would push aetual implementation well beyond 

that of a barricade-type system. Even after the delay since the March 12 ERP submission, had 

Respondents agreed to purchase the chambers within ten days, their ERPs would have been 

approved. However, Respondents refused to purchase the chambers for another 60 days. In light 

of the time that had already elapsed, and the fact that 14 other operators had submitted purchase 

orders for chambers, the district manager determined that 60 days was too !Ong a delay for 

purchasing equipment-with an uncertain delivery date. ·He insisted on a much shorter time 

period. 

Respondents contend that the requirement to submit purchase orders is contrary to the 

Act's requirement that ERPs reflect the most recent credible scientific research and be 

29FMSHRC 554 
technologically feasible. ;~O U.S.C. § 876(b )(2)(C). They claim that they refused to submit 

purchase orders until certain limited testing was completed, so that they could be assured that 

refuge chambers were technologically feasible and consistent with credible scientific research. 15 

Resp. Br. at 28, 33. This appears to represent a bit of a retraction of their disputed plan 

provisions, that purchase orders would be submitted within 60 days of plan approval. 

Cumberland's ERP was approved, with the exception of the disputed provision, on May 23. Had 

the disputed provision been approved also, its .commitment would have been to provide purchase 

orders byJuly,22. It is doubtful that Respondents could have had any reasonable expectation that 

testing would have confirmed, the technological feasibility of C02 scrubbing systems in refuge 

chambers within that time period. It is unclear whether they were aware, at that tilD.e, that 

NIOSH planned to commence testing on June 18. They certainly did not have the draft protocol, 

which was not circulated until June l. They had planned to do their own testing, but that proved 

unavailing. While Gallick was confident that he would have preliminary test data ''within 60 

days," as phrased, that was 60 days froin June 12,Jhe hearing date, well past the ERP 

commitment. Tr. 275. In any event, if Respondents believed that refuge chambers were not 

technologically feasible, they should have removed them from their ERPs, and opted for 

barricade-type systems. 

Respondents argue that "MSHA doesn't actually know if any of the systems will work in 

a mine environment." Resp. Br. at 34~ .. However, there is little reason to question whether Jongrecognized effective methods tQ scrub C02 from the air will work a$ effectively in the mining 

environment as they have elsewhere. There is no real evidence to suggest that they will not, and 

the available evidence tends to confirm the effectiveness of the systems. A C~adian. study 

involving 25 men in a shelter in an underground mine for 24 hours yielded results that "exceeded 

expectations." Tr. 283-84. A vendor oflithium hydroxide C02 scrubbing curtains has also 

performed testing of a chamber'. While the results .have not been made public, Gallick bad bee11 

told they were "good." Tr. 242. Moreover, the refuge chamber used in that test appears to have 

been a rigid chamber which Respondents are interested in purchasing. Tr. 292-93. The C02 

scrubbing technology is not new. It has been tried and proven effective in multiple applications. 

Tr. 168-70. Respondents recognize that there is no question that the "physics of scrubbing 

works." Tr, 297, MSHA's expert believeci thatthe technology should be tested in the mining 

environment, but, he did not anticipate any substantial differences in performapce. Tr. l97-98. 

I find that -the Secretary has carried her burden of proving that the refusals to approve the 

disputed ERP provisions, and to require submission of purchase orders within ten days, were not 

15 At the hearing, Respondents also raised ~oncems about committing funds, .significant 

non-refundable deposits, for the purchase of chambers that might not have proven to be effective. 

Tr. 247. However, they conceded that chamber vendors provided warranties that their products. 

would meet all applicable requirements or guidelines .in effect at the time of order confirmation, 

and would repair, repf.ace or provide a refund if testing revealed that the chamber~ did not meet 

the breathable air requirements .. Tr. 278-79. Respondents do not make an economic. argument in 

their brief. 

29 FMSHRC 555 
arbitrary and capricious. The district manager's decisions were reasonable, and the fact that most 

other district managers decided not to require purchase orders as part•ofERPs doesn't alter that · 

conclusion. 

ORDER 

Citation Nos. 7020004 and 7020005 are AFFIRMED. Respondents are directed to 

incfode in their Emergency Response Plans a commitment that purchase order(s) for refuge 

chambers shall be submitted to the Secretary's Mine Safety and HealthAdirtinistration(MSHA) 

on or before July 9, 2007 .

16 

Distribution (electronic and certified mail): 

Stephen Turow, Esq., Gayle Green, Esq., fonathan Hammer, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1100 Wilson Blvd., 22nd Fl6or, Arlington, VA 22209~2296 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

Ave., Pittsburgh, PA 15222 

Judith Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031 

16 The tenth day from the date of this decision, July 7, 2007, falls on a Saturday. 

Accordingly, the revisions to the ERPs are due on Monday, July 9, 2007. Section 

316(b)(2)(F)(iii) of the Act provides that any decision requiring the inclusion of a disputed plan 

provision will ilot be limited by any appeal unless such reliefis requested by the operator and 

permitted by the Administrative Law Judge." Any stay sought by Respondents will be denied. 

The date by which purchase orders must be submitted under this· decision. is only a f~w days 

earlier than when Respondents committed to provide them. Had Cμmberland's provision been 

approved along with the rest of the ERP on May 23, purchase orders would have been required 

by July 22. Moreover, it is apparent that Respondents have made decisions about what products 

they intend to purchase, and have been in a position since late April to make purchase · 

commitments. In addition, if the NIOSH testing commenced on June 18, Respondents should 

have access to some of the preliminary data they sought. In any event, the ten days allowed in 

the decision will provide ample time to seek relief from the Commission in the event of an 

appeal. 

29 FMSHRC 556 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001-2021 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALUI 

ADMINISTRATION (MSHA),. 

Petitioner . 

V. 

June 28, 2007 

CIVIL PENALTY PROCEEDINGS 

... 

. , Docket No. KENT 2006-237 

A.C. No. 15-18647-82666 . 

LONE MOUNTAIN PROCESSING, INC., 

Respondent 

Docket No. KENT 2006-238 

A.C. No. 15-17234-82541 

Huff Creek No. 1 

DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville; Tennessee, Alex R. Sorke, Jr., Conference and Litigation 

Representative, Office of Mi.ne Safety and Health Administration, Barbourville, 

Kentucky, for the Petitioner; 

Marco M. Rajkovich, Esq., Noelle Holladay True, Esq., Rajkovich, Williams, 

Kilpatrick & True, PLLC, Lexington, Kentucky, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based on Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor, alleging that Lone Mountain Processing, fuc., ("Lone Mountain") violated 

various maQ.datory safety standards set forth in Title 30 of the Code of Federal Regulations 

(C.F.R.). Pursuant to notice, these cases were scheduled to be heard on May 30, 2007, in 

Johnson City, Tennessee. 

I. Docket No. KENT 2006-238 

At the .heariIJ.g, .the Secretary made a motion to approve a settlement agreement. It was 

asserted that the operator agreed to pay the full proposed penalty of $228. The operator did not 

object to the motion. I have considered the representations and documentation submitted in this 

case, and I conclude that the proffered settlement is appropriate under the criteria set forth in 

Section 11 O(i) of the Federal Mine Safety and Health Act of 1977. 

ACCORDINGLY, the motion for approval of settlement is GRANTED. 

29 FMSHRC 557 
II. Docket No. KENT 2006-237 

a. Citation No's 7552560, 7552564, and 7552565 

At the hearing, the Secretary made a motion to approve a settlement regarding these .. · 

citations. A reduction in total penalties from $1,175 to $554 was proposed. Also, the Secretary 

asserted it agreed to vacate Citation No. 7552565. The operator did not object to the motion. I 

have considered the representations and documentation submitted in this case, and I conclude 

that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i) of the 

Act. . . -

ACCORDINGLY, the motion for approval of settlement is GRANTED. 

b. Citation No. 7552563 

At the conclusion of the evidentiary hearing in this matter, a bench decision was rendered 

which, with the exception of corrections of non-substantive matters, is set forth as follows: 

Lone Mountain operates the Clover Fork No. 1 Mine. On November 30, 

2005, MSHA inspector Stanley Dale Sturgill, inspected the subject site. He 

picked up the cable supplying power to a Fletcher bolter on the 002-MMU 

Section. Sturgill observed a one-quarter inch vertical gap between the splice on 

the cable and the inner leads. In addition, the insulated leads within the cable 

were exposed for approximately four inches on either side of the.splice. Normally 

these wires are covered by insulating tape between the end of the splice and the 

intact portion of the cable. 

According to Sturgill, the area where the cable was located was wet, and 

the cable was lying in mud. He issued a citation alleging a violation of 30 CFR § 

75.604(b), which provides that when permanent splices in trailing cables are 

made, they shall be "[ e ]ffectively insulated and sealed so as to exclude 

moisture[.]" 

The operator has conceded that a violation has been established. Based on 

the uncontradicted testimony of the inspector relating to the existence of exposed · 

leads, I find that the Secretary has established a violation of Section 

75.604(b), supra. 

The Secretary also alleges that the violation was significant and 

substantial. In Mathies Coal Company, 6 FMSHRC 1, 3-4 (Januaty1984) the 

Commission set forth four elements that the Secretary must prove to establish a 

violation as being significant and substantial. These are the underlying violation 

29 FMSHRC 558 
of a mandatory safety standard, a discreet safety hazard contributed to by the 

violation, a reasonable likelihoqd that the hazard contributed,to will result in an 

injury, and ,a reasonable likelihood that tpe injtey in question will be of a 

reasonably serious nature. 

. . . . -

The Secretary has established the. existence of a violatipn. Also the record 

indicates that the violation contributed to the hazard of an eleci.rical shock should 

a miner touch an exposed portion of the cable which contains energized wires. 

The issue presented herein is the third element in the Mathies case, i.e,, the 

existence of a reasonable likelihood that the hazard contributed to will result in an 

lilJury. 

Subsequent to Mathies, supra, the C~mmission explained thi~ element by 

articulating, in essence, that it requires the existence of a reasonable likelihood of 

an injury-producing event. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 

(1984). 

Sturgill indicated that two of the leads within tl:ie cable were energized 

with 480 volts, and he had to wipe the damaged cable with a rag, as it was wet and 

muddy. Further, according to Sturgill, the ends of the splice were open, which 

allows water to seep in; the cable was in water; the area was wet; and he could see 

moisture on the exposed leads for about one-quarter of an inch inside the splice. 

liovvever, the key issue is whether there was a reasonable likelihood of an 

injury-:-producing event: (See, U.S. Steel,,supra.) The inspector indicated thatin 

his experience he has observed pinholes in qables, wires sticking out of cable, and 

leads within a splice that have been pulled 'apart. He opined that a person coming 

in contact with a pinhole, exposed wires, or wires sticking out of a cable, would 

be exposed to at least 240 volts, resulting in a serious bum or electric shock. 

However, it is significant that Sturgill did not observe any qfthese defects, 

nor was he able to see inside the splice,to establish 1'.}le existence of these defects. 

Sturgill opined that these defects could occur, but he did not indicate the 

presence of any condition that would lea~ to an inference of the existence of any 

of these defects. Nor did he .indicate any condition or practice that would have 

resulted in a reasonable likelihood of the creation of these defects, as a result of 

the continuation of normal mining operations. Sturgill indicated that the cable is 

regularly moved and hung up, but he did not indicate that these activities would 

increase the likelihood of a defect occurring. 

29 FMSHRC 559 
Moreover, the- exposed wires were fully insulated, Sturgill conceded on 

cross-examination that, in essence, insulation keeps water from contacting the 

leads in the cable. Also he indicated on cross-examination that if the leads· are 

insulated, there is not any hazard of shock in the absence of a pinhole in the cable 

or a wire protruding from the cable, and that there is not any hazard of arcing 

unless the wires within a splice or a cable have been separated or have lost their 

insulation. There is not any evidence in the record of any of these conditions. 

I conclude that there is not sufficient evidence to support the inspector's 

assumption of the presence of a pinhole, protruding wires, or damage to leads 

within the cable or splice. For all these reasons, I conclude that it has not been 

established that there was a reasonable likelihood of an injury-producing event, 

i.e., contact with a damaged wire or arcing. 

I thus find that the third element set forth in Mathies has not been 

established, and, therefore, I find that the violation was not significant and 

substantial. 

The parties stipulated that a reasonable penalty would not affect the 

operator's ability to remain in business; that the violation was timely abated in 

good faith; that Lone Mountain has an average violation history for an operator of 

that size, and that it is a large operator. 

Because water was present in the area, and the cited cable might be moved 

in water, a serious injury could have resulted should a pinhole appear or a wire 

protrude in the exposed area of the cable, or if the leads would separate within the 

cable or water and enter the splice through a gap. I find the gravity of the -· 

violation to be relatively serious. · 

Sturgill indicated that before he picked up the cable, he observed that it 

had a splice, and that some portion of the wires were exposed. Also, he opined 

that, based on his observation of the cable's condition, it had not been examined 

weekly. However, he indicated that he checked the relevant company books, 

which indicated that a weekly examination had been done. Lone Mountain did 

not adduce any evidence of any significant mitigating factors. Within the context 

of all the above, I find that Lone Mountain's negligence was to moderate. 

Considering and weighing all the above factors set forth in Section 11 O(i) 

of the Act, I find that a penalty of$100 is appropriate for this violation. Tr. 103-

109. - . 

29 FMSHRC 560 
ORDER 

It is Ordered that, within 30 days of this decision, Lone Mountain pay a total civil 

penalty of$882. , · .. 

~k-· Administrative Law Judge 

Distribution List: (Certified Mail) 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, 1N 37219-2456 

Alex R Sorke, Jr., Conference and Litigation Representative, Office of Mine Safety and Health 

Administration, (MSHA), 3837 .South U.S. Highway 25 East, Barbourville~ Kentucky, 40906 

Marco M. Rajkovich, Esq., Noelle Holladay True, Esq., Rajkovich; Williams, Kilpatrick & True, 

PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY .40517 . 

\lp 

29 FMSHRC 561 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASPHALT PA YING SUPPLY INC., 

Respondent 

Washington, D.C. 20001 

June 28, 2007 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2006-577-M 

A. C. No. 02-02135-95017 

Prescott Valley Pit 

DECISION 

Appearances: Isabella Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, San 

Francisco, California and Ronald D. Pennington, Conference and Litigation 

Representative, U.S. Department of Labor, Denver, Colorado, on behalf of the 

Petitioner; 

Jack Kolberg, Safety Director, Asphalt Paving & Supply, Inc., Prescott Valley, 

Arizona, on behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon a petition for civil penalty filed by the Secretary of Labor 

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., the "Act," charging (as amended) Asphalt Paving & Supply Inc. (Asphalt Paving) with one 

violation of the mandatory standard at 30 C.F .R. § 56.12008. The general issue before me is whether 

Asphalt Paving violated the cited standard and, if so, what is the appropriate civil pen3.1.ty to be 

assessed in accordance with section 11 O(i) of the Act. 

Citation No. 6306160, as amended, charges as follows: 

The 110 volt power cable feeding power to the pond pump condensation heater, located at 

the upper pond, was not insulated and/or did not have adequate protection for the power 

conductors. The conductors were exposed for approximately one-half inch where the outer 

protective jacket had been pulled from the bushing of the junction box. Employees were 

exposed to the possibility of injUry from shock, flash or burn hazard ifthe conductors were 

to become damaged. No bare copper wire was observed. The operator was unaware of the 

electrical defect and the workplace exam was incomplete for this shift. 

29 FMSHRC 562 
The Secretary alleges that the third sentence of the cited standard:was violated. That sentence 

provides that"[ w ]hen insulated wires, other than cables, pass ·through metal frames;. the holes shall 

be substantially bushed with insulated bushings." 

The testimony of Bartholomew Wrobel, an inspector for the. Department of Labor's Mine 

Safety and Health Administration (MSHA), is undisputed that June 14, 2006, the 110 volt power 

cable feeding the pond pump condensation heater did not have adequate protection for the power 

conductors. The undisputed evidence shows that the conductors were e~posed about one-halfinch 

where the outer protective jackethad be.en pulled from the bushing of the junction box. fuspector 

Wrobel issued the citation at .around 7:00 a.m. on that date. He took photographs of the cited 

condition and those photographs were admitted into evidence (Gov't. Exh. Nos.3 and 3-J). These 

photographs corroborate Wrobel's testimony as they depict the power conductor pulled out of its 

bushing with the individual conductors exposed. Wrobel opined that injuries were unlikely because 

the conducting copper wires were not exposed. He also opined, however, that should an injury occur 

it would reasonably be expected to be fatal. He n()ted that with 110 volts alternating current, a 

person contacting the exposed wires would be unable to re~ease their hold and fatalinjuries would 

reasonably be expected. 

fuspector Wrobel opined that the violation was caused by ."moderate" operator negligence 

in light of his finding that the condition was obvious from lO,to 15 feet away. He conceded, 

however, that the mine operator was not aware of the condition and that it could have developed only 

minutes before it was discovered .. Wrobel further acknowledged that the operator's representative 

accompanying him on the inspection told hini that they had not yet completed .their w:orkplace 

examination at the time the violation was discovered and argued that they would hav~ discovered 

and corrected the condition if they only had be~n given rμore time. . The representative also. told 

Wrobel that "free-range" cattle water at the pond adjacent to the, cited .condition arid that the 

condition may have resulted from cattle pulling the power cable from its bushing. In this regard 

Wrobel identified a cow hoof print in one of the operator's photographic exhibits (Operator's Exh. 

No. 3). 

Chris Mathern, a safety assistant for Asphalt Paving, testified that another problem had been 

discovered during the operator's pre-shift inspection that morning, before the violative condition was 

cited, and that other condition needed to be repaired. As a result, their inspection had not yet been 

conducted in the area:where the violative condition was found. 

Robert Smith, Asphalt Paving's wash plant operator, testified that he performed the pre-shift 

inspection on the day before the citation was issued and, in particular, inspected the cited area and 

found nothing wrong with the wiring at that time. On the date the citation was issued he interrupted 

his inspection to repair some screens and by the time he arrived at the scene of the violative 

condition, it had already been repaired. Smith surmised that the damage tothe wiring had occurred 

the night before the citation was issued based on his observation of cattle hoof tracks in close 

proximity to the condition. According to Mr. Mathern; the photograph depicting:the cow hoof print 

was taken on the 15th of June, the day after the citation had been issued. 

29 FMSHRC 563 
I find the testimony of Mathern and Smith to be credible and conclude that indeed the 

condition cited by the inspector on June 14th had occurred only the night before and prior to the 

completion of the mine operator's inspection that day. Under the circumstances, I do not find the 

operator chargeable with negligence. 

While not denying that the violative condition. existed, the Respondent has presented 

arguments that, in effect, it is unfair for the ·secretary to issue a citation for a violative condition 

before the mine operator has the opportunity to complete its examination of the workplace and to 

correct conditions found during that examination. Section 104( a) of the Act mandates the issuance 

of a citation, however, when an inspector finds that a mine operator has violated any mandatory 

safety standard. 1 · 

Civil Penalties 

Under section 11 O(i) of the Act the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the operator in 

committing the violation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operator's ability to continue in 

business. It may be inferred from the record that Asphalt Paving is a small size mine. Its history of 

violations is not insignificant though most were assessed at the minimum level. Inspector Wrobel 

also testified that the mine had shown recent improvement in the nuriiber·of violations. The gravity 

and negligence findings have previously been discussed. The record indicates that the violative 

condition was abated in a timely manner. There is no evidence that the penalty would affect the 

operator's ability to continue-in business. Under the circumstances, and, in particular, considering 

the findings of low gravity and lack of negligence, I find that a civil penalty of $25.00 for the 

violation charged herein is appropriate. 

ORDER 

1 Section 104(a)provides in relevant part as follows: . 

If, upon inspection or investigation, the Secretary or his authorized representative 

believes that an operator of a coal or other mine subject to this Act has violated 

this Act, or any mandatory health or safety standard, rule, order, or regulation 

promulgated pursuant to this. Act, he shall, with reasonable promptness issue a 

citation to the operator. · · 

29 FMSHRC 564 
Distribution: (Certified Mail) 

Isabella Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite 

3-700, San Francisco, CA 94103-1516 

Ronald D. Pennington, Esq., U.S. Dept. of Labor, MSHA, P.O. Box 25367, DFC MINM, Denver, 

co 80225-0367 

Jack Kolberg, Safety Director, Asphalt Paving & Supply, Inc., 7001 2nd Street, Prescott Valley, AZ 

86314 

/lh 

29 FMSHRC 565 

'.,.. ,, ;, .. ' . 

ADMINISTRATIVELAW JUDGE ORDERS· · . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On behalf of Frederick Martin, 

Applicant 

v. 

DICKENSON-RUSSELL COAL CO., 

Respondent 

May21, 2007 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. VA 2007-40-D 

NORT CD 2007-01 

Mine ID 44-07146 

Roaring Fork No. 4 

STAY ORDER 

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

Secretary of Labor (the Secretary) on behalf of Frederick Martin against Dickenson-Russell Coal 

Company (Dickenson) under section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(c)(2) (the A.ct) .. Tills ca5ewas scheduled for hearing on May 23, 2007. 

During a May 18, 2007, telephone conference, the parties agreed to stay this matter for a period 

not to exceed 60 days from the date of this Order during which time Dickenson agreed to 

economically reinstate Martin. Specifically, the Secretary and Dickenson have agreed that, in 

lieu of Dickenson reinstating Martin to a job at the Roaring Fork No. 4 Mine, Dickenson shall 

pay Martin, on a bi-weekly basis consistent with Dickenson's regular payroll practices, a sum of 

money, net of taxes and other required withholdings, that is equal to the amount of wages that 

Martin would have earned, net of taxes and other required withholdings, if he had been reinstated 

to his former position, hereinafter referred to as "temporary economic reinstatement." 

Dickenson shall be entitled to a credit or refund for any wages earned by Martin from other 

employers during the period of temporary economic reinstatement. 

The parties will initiate a telephone conference within this 60 day period to discuss the 

status of the Secretary's discrimination investigation. If the Secretary, during this 60 day period, 

elects to file a discrimination action on Martin's behalf, the parties will agree on a mutually 

satisfactory discovery schedule and hearing date for the underlying discrimination matter. 

Therefore, by agreement of the parties, it is hereby ORDERED that: 

1. Dickenson-Russell shall provide temporary economic reinstatement to Martin 

effective upon entry of this Order. 

29 FMSHRC 566 
2. Temporary economic. reinstatement shall continue for a period of 60 days from 

entry of this Order. During this 60-day period, the temporary reinstatement proceedings in this 

case shall be stayed. If during the 60-day period the Secretary files a complaint on the merits of 

Martin's allegations of discrimination, temporary economic reinstatement shall continue pending 

a final order by the Administrative Law Judge on the complaint. If during the 60-day period the 

Secretary determines not to file a complaint, the parties shall address whether temporary 

economic reinstatement shall terminate. If at the end of the 60-day period, the Secretary has not 

determined whether to file a complaint, the Secretary may seek a hearing on the application for 

temporary reinstatement. 

3. The parties agree that any future proceedings on temporary reinstatement or on a 

discrimination complaint shall be conducted expeditiously. 

4. This Order is entered without prejudice to Dickenson-Russell's right to contest the 

allegations made in the Secretary's application for temporary reinstatement and in any 

discrimination complaint. This Order is also entered without prejudice to the right of either party 

to move to enlarge, dissolve, or modify this Order, and I retain jurisdiction to hear and determine 

any such motions. 

5. If Martin is employed in another comparable position in the mining industry, the 

temporary economic reinstatement shall terminate. 

Accordingly, IT IS FURTHER ORDERED that the captioned temporary reinstatement 

matter IS STAYED for a period not to exceed 60 days from the date of this Order. 

Jerold Feldman 

Administrative Law Judge 

(202) 434-9967 

Distribution: (Facsimile and Certified Mail) 

Nickole Winnett, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

Wade W. Massie, Es9., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212 

/mh 

29 FMSHRC ~67 

G:l}· U.S. GOVERNMENT PRINTING OFFICE: 2007-330-902/53303 
29 FMSHRC 568