JULY 2012 

TABLE OF CONTENTS 

COMMISSION DECISIONS AND ORDERS 

7-10-2012 STRACK EXCAVATING, LLC CENT 2012-213-M Page 1571 

7-10-2012 ELMORE SAND AND GRAVEL, INC. SE 2012-112-M Page 1574 

7-10-2012 MAPLE COAL COMPANY WEVA 2012-405 Page 1577 

7-12-2012 SEC. OF LABOR o/b/o REUBEN KENT 2012-655-D Page 1580 

SHEMWELL v. ARMSTRONG COAL 

COMPANY, INC. and ARMSTRONG 

FABRICATORS, INC. 

7-12-2012 PERFORMANCE COAL COMPANY WEVA 2010-1190-R Page 1585 

7-18-2012 TARMAC AMERICA, LLC SE 2010-658-M Page 1588 

i 

ADMINISTRATIVE LAW JUDGE DECISIONS 

7-2-2012 TIFFANY MYERS v. WEST 2011-1337-DM Page 1593 

FREEPORT-MCMORAN MORENCI, 

INC. 

7-10-2012 ERNEST B. MATNEY, Employed by VA 2008-215 Page 1613 

KNOX CREEK COAL CORP. 

7-11-2012 JEFF SCOTT v. NEWMONT USA WEST 2012-79-DM Page 1616 

LIMITED 

7-13-2012 HIGHLAND ENTERPRISES, LLC WEST 2009-1213-M Page 1633 

7-17-2012 WEST ALABAMA SAND & GRAVEL, SE 2009-870-M Page 1651 

INC. 
 

7-23-2012	 SEC. OF LABOR O/B/O DUSTIN KENT 2012-1157-D Page 1658 

FLENER, JARRED B. ADAMS, and 

RONNIE BURDEN v. ARMSTRONG 

COAL COMPANY, INC. and 

ARMSTRONG FABRICATORS, INC. 

7-23-2012	 CONSOLIDATION COAL CO. VA 2009-211 Page 1669 

7-24-2012	 AGGREGATE INDUSTRIES WRC, INC. WEST 2011-957-M Page 1683 

7-26-2012	 DAWES RIGGING & CRANE RENTAL LAKE 2011-206-M Page 1689 

ADMINISTRATIVE LAW JUDGE ORDERS 

ii 

7-2-2012 PARAMONT COAL COMPANY VA 2012-375-R Page 1709 

VIRGINIA, LLC 

7-6-2012 CONSOLIDATION COAL CO. WEVA 2011-940 Page 1717 

7-16-2012 RECON REFRACTORY & WEST 2010-450-M Page 1722 

CONSTRUCTION, INC. 
Review was granted in the following cases during the month of July 2012: 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket Nos. SE 2007-109, et al. 

(Judge Weisberger, June 14, 2012) 

Secretary of Labor, MSHA v. Signal Peak Energy LLC., Docket No. WEST 2010-1130. (Judge 

Moran, June 11, 2012) 

Secretary of Labor, MSHA v. Leeco, Inc., Docket No. KENT 2009-773. (Judge Weisberger, June 

22, 2012) 

Review was denied in the following cases during the month of July 2012:
 

Secretary of Labor, MSHA v. Excel Mining, LLC, Docket Nos. KENT 2008-1481-R, KENT 2009-

33. (Judge Gill, June 4, 2012) 

Secretary of Labor, MSHA on behalf of Charles Scott Howard v. Cumberland River Coal Company, 

Docket No. KENT 2011-1379-D. (Judge Miller, June 15, 2012) 

Secretary of Labor, MSHA v. Magic Valley Sand & Gravel, Inc., Docket No. 

West 2009-766-M. (Judge Manning, June 20, 2012) 

iii 
iv
 
COMMISSION DECISIONS AND ORDERS
 
34 FMSHRC Page 1570
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 10, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. CENT 2012-213-M 

v. : A.C. No. 23-02231-268863 

: 

STRACK EXCAVATING, LLC : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On December 12, 2011, the Commission received from 

Strack Excavating, LLC (“Strack”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed 

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

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

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

34 FMSHRC Page 1571
The record indicates that the proposed assessment was delivered on October 11, 2011, 

and became a final order of the Commission on November 10, 2011. Strack asserts that its 

newly-hired safety coordinator assured the owner that she timely contested the penalty 

assessments, but did not do so. Strack’s owner states that the safety coordinator was terminated 

on October 19, 2011. The Secretary does not oppose the request to reopen, and urges the 

operator to take all steps necessary to ensure that future penalty contests are timely filed. 

Having reviewed Strack’s request and the Secretary’s response, in the interests of justice, 

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

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

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner 

34 FMSHRC Page 1572
 

Distribution: 

Jo Wayne Strack, Owner 

Strack Excavating, LLC 

5120 State Hgwy. 74 

Cape Girardeau, MO 63701 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 1573
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 10, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. SE 2012-112-M 

v. : A.C. No. 01-01138-270663 

: 

ELMORE SAND AND GRAVEL, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On December 12, 2011, the Commission received from 

Elmore Sand and Gravel, Inc. (“Elmore”) a motion seeking to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed 

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

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

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

34 FMSHRC Page 1574
The record indicates that Proposed Assessment No. 000270663 was delivered to Elmore 

on November 8, 2011, and became a final order of the Commission on December 8, 2011. 

Elmore asserts that its safety director is recovering from a head injury and is suffering short term 

memory problems. The safety director states that he became confused when he received a 

second assessment, case No. 000273381, which referenced Assessment No. 000270663 as 

outstanding. Because the second assessment was dated November 29, 2011, the safety director 

believed he had 30 days from that date to contest the outstanding assessment. Elmore hired 

counsel on December 9, 2011, who discovered the error and filed this motion to reopen that 

same day. The Secretary does not oppose the request to reopen, and urges the operator to take 

steps to ensure that all penalty contests are timely filed. 

Having reviewed Elmore’s request and the Secretary’s response, in the interests of 

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner 

34 FMSHRC Page 1575
 

 

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 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 1576
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 10, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. WEVA 2012-405 

v. : A.C. No. 46-04236-269689 

: 

MAPLE COAL COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On December 12, 2011, the Commission received from 

Maple Coal Company (“Maple”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed 

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

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

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

34 FMSHRC Page 1577
The record indicates that the proposed assessment was delivered on October 18, 2011, 

and became a final order of the Commission on November 17, 2011. Maple asserts that its 

safety manager mistakenly date stamped the assessment as received on October 19, 2011. 

Maple’s senior counsel was therefore under the mistaken impression that his November 18, 2011 

contest was timely, until he received a delinquency letter dated November 22, 2011. The 

Secretary does not oppose the request to reopen, and urges the operator to adopt the necessary 

procedures to ensure that future penalty contests are timely filed. 

Having reviewed Maple’s request and the Secretary’s response, in the interests of justice, 

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

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

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 1578
 

 

Distribution: 

Patrick W. Dennison, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222-1000 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 1579
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 12, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 on behalf of :

 REUBEN SHEMWELL :

 : 

v. : Docket No. KENT 2012-655-D

 : 

ARMSTRONG COAL COMPANY, INC. :

 : 

and :

 : 

ARMSTRONG FABRICATORS, INC. : 

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

DECISION 

BY THE COMMISSION: 

This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (“Mine Act”).1 On June 28, 

2012, the Commission received from Armstrong Coal Company, Inc. (“Armstrong Coal”) and 

1 30 U.S.C. § 815(c)(2) provides in pertinent part: 

Any miner . . . who believes that he has been discharged, interfered with, or 

otherwise discriminated against by any person in violation of this subsection may, 

within 60 days after such violation occurs, file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent and shall cause such 

investigation to be made as [s]he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary’s receipt of the complaint, and if the 

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

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

reinstatement of the miner pending final order on the complaint. 

34 FMSHRC Page 1580
Armstrong Fabricators, Inc. (“Armstrong Fabricators”) a joint petition for review of 

Administrative Law Judge Jerold Feldman’s June 21, 2012 Decision on Remand and Order of 

Temporary Reinstatement. On July 6, 2012, the Commission received the Secretary of Labor’s 

opposition to the joint petition. For the reasons that follow, we grant the petition for 

discretionary review and affirm the Judge’s order requiring the temporary reinstatement of 

Reuben Shemwell. 

Mr. Shemwell worked as a welder from April 19, 2010, until his termination on 

September 14, 2011. 34 FMSHRC , slip op. at 2, No. KENT 2012-655-D (June 21, 2012) 

(ALJ) (“Dec. on Remand”). Mr. Shemwell worked at surface mines operated by Armstrong 

Coal and at a repair shop operated by Armstrong Fabricators. Id. The Secretary alleges that 

Shemwell’s dismissal was motivated by Shemwell’s complaints concerning the need for 

respirator protection from fumes that were generated during the welding process. Id. at 8. 

However, the operators assert that Shemwell was discharged for unauthorized personal cell 

phone use during working hours. Id. 

On January 23, 2012, Mr. Shemwell filed a discrimination complaint with the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) against Armstrong 

Coal. MSHA conducted a preliminary investigation of Shemwell’s discrimination complaint and 

found that it was not frivolously brought. On March 5, 2012, the Secretary filed an Application 

for Temporary Reinstatement, requesting an order requiring Armstrong Coal to temporarily 

reinstate Shemwell to his former position as a welder. On March 8, 2012, Armstrong Coal filed 

a Request for Hearing on the Secretary’s Application for Temporary Reinstatement. 

On April 20, 2012, the Judge issued a summary decision in the Secretary’s favor, 

concluding that Mr. Shemwell’s discrimination complaint was not frivolously brought and 

directing Armstrong Coal and/or Armstrong Fabricators to immediately reinstate Mr. Shemwell 

no later than April 25, 2012. 34 FMSHRC , slip op. at 7-9, No. KENT 2012-655-D (Apr. 20, 

2012) (ALJ). The Judge noted that there were issues concerning whether Armstrong Coal or 

Armstrong Fabricators was the proper party to be named in the proceeding and whether Mr. 

Shemwell had filed his complaint in a timely manner but reasoned that it was not his duty to 

resolve those issues in a temporary reinstatement proceeding. Id. at 3-7. 

Armstrong Coal and Armstrong Fabricators filed a petition for review of the Judge’s 

temporary reinstatement order and a motion to stay the Judge’s reinstatement order. The 

Secretary opposed the petition and motion to stay. 

On May 10, 2012, we issued an order granting the operators’ petition, vacating the 

Judge’s decision granting summary decision, denying the operators’ motion to stay, and 

remanding the matter to the Judge. We held that the Judge erred in granting the motion for 

summary decision and remanded the matter to the Judge for a hearing. 34 FMSHRC , slip op. 

at 4-5, No. KENT 2012-655-D (May 10, 2012). We reasoned that 29 C.F.R. § 2700.45(c) 

requires a hearing on an application for temporary reinstatement, if it is requested, and that the 

Judge failed to hold a hearing although Armstrong Coal had requested one. Id. at 4. We 

34 FMSHRC Page 1581
 

 

determined that the issues regarding the timeliness of the filing of Shemwell’s complaint and 

which operator is appropriately named as a party to the proceeding may be addressed and 

decided in the proceeding on the merits. Id. at 5-6. However, we noted some evidence in the 

record that the shop where Mr. Shemwell worked had been idled and the staff laid off. Id. at 5. 

We instructed the Judge on remand to take evidence regarding whether there was a layoff that 

would toll an operator’s temporary reinstatement obligation, in addition to other evidence 

relevant to a temporary reinstatement proceeding. Id. 

The Judge conducted a hearing on May 23, 2012. Consistent with our remand 

instructions, the Judge took evidence relevant to a temporary reinstatement proceeding and 

evidence regarding the layoff at Armstrong Fabricators’ shop. The Judge concluded that the 

Secretary demonstrated that Shemwell’s discrimination complaint was not frivolously brought. 

Dec. on Remand at 12. The Judge further found that regardless of the layoff, there is a suitable 

position to which Shemwell can be reinstated. Id. at 10. Accordingly, the Judge ordered 

Armstrong Coal and/or Armstrong Fabricators to immediately reinstate Shemwell, no later than 

June 27, 2012, to the welder position he held prior to his termination, or to a similar position as a 

laborer at the same rate of pay and benefits, and with the same or equivalent duties assigned to 

him. Id. at 12. The Judge also, in part, ordered Armstrong Coal and/or Armstrong Fabricators to 

provide back pay to Shemwell effective April 25, 2012. Id. at 13. 

Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognized that the “scope of a 

temporary reinstatement hearing is narrow, being limited to a determination by the judge as to 

whether a miner’s discrimination complaint is frivolously brought.” See Sec’y of Labor on 

behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 

(11th Cir. 1990). The Commission applies the substantial evidence standard in reviewing the 

Judge’s determination.2 Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 

FMSHRC 153, 157 (Feb. 2000). 

The issues before us are: (1) whether substantial evidence supports the Judge’s 

determination that Shemwell’s discrimination complaint was not frivolously brought; and (2) 

whether the Judge erred in determining that the operators’ obligation to temporarily reinstate 

Shemwell under section 105(c)(2) of the Mine Act is not affected by the layoff. After review of 

the pleadings and record evidence, we conclude that the Judge’s determination that the complaint 

2

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

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

§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable 

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

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. of New York, Inc. 

v. NLRB, 305 U.S. 197, 229 (1938)). 

34 FMSHRC Page 1582
is not frivolous is supported by substantial evidence and is consistent with applicable law. We 

further conclude that the Judge’s finding that the layoff has no legal effect on the obligation to 

temporarily reinstate Shemwell is consistent with applicable law and supported by substantial 

evidence. We intimate no view as to the ultimate merits of this case. 

Accordingly, we affirm the Judge’s June 21 decision temporarily reinstating Shemwell.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 1583
 

 

Distribution:
 

Adam K. Spease, Esq.
 

Miller Wells, PLLC
 

710 West Main Street, 4th Floor
 

Louisville, KY 40202
 

Alex L. Scutchfield, Esq.
 

Miller & Wells, PLLC
 

300 E. Main Street, Suite 360
 

Lexington, KY 40507
 

Dan Zaluski, Esq.
 

Armstrong Coal Company, Inc.
 

407 Brown Road
 

Madisonville, KY 42431
 

Tony Oppegard, Esq.
 

P.O. Box 22446 

Lexington, KY 40522 

tonyoppegard@yahoo.com 

Edward Waldman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 1584
 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 12, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 :

 v. : Docket No. WEVA 2010-1190-R

 : 

PERFORMANCE COAL COMPANY : 

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

ORDER 

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On July 21, 2010, Performance Coal Company 

(“Performance”) filed with the Commission a petition for review which the company styled as an 

“Emergency Petition for Expedited Discretionary Review.” In its petition, Performance sought 

review of Commission Administrative Law Judge Margaret A. Miller’s unpublished order dated 

July 8, 2010, denying the company’s application for temporary relief. Performance had sought 

temporary relief from an order issued by the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k). On 

August 17, 2010, the Commission affirmed the Judge’s decision denying Performance’s 

application for temporary relief. 32 FMSHRC 811, 812 (Aug. 2010). 

Performance then appealed the Commission’s decision to the U.S. Court of Appeals for 

the District of Columbia Circuit. On June 10, 2011, the D.C. Circuit reversed the Commission 

on the temporary relief issue, holding that section 105(b)(2) of the Mine Act, 30 U.S.C. 

§ 815(b)(2), permits an operator to seek temporary relief from the modification of an order 

issued pursuant to section 103(k) of the Mine Act. Performance Coal Co. v. FMSHRC, 642 F.3d 

234, 239-40 (D.C. Cir. 2011). 

On October 27, 2010, while the temporary relief issue was pending before the D.C. 

Circuit, the Commission issued an order granting another petition for discretionary review filed 

by Performance. This petition sought review of Judge Miller’s Order Granting Secretary’s 

Motion for Summary Decision issued on September 17, 2010. 

On June 11, 2012, the Commission issued an order directing the parties to show cause 

why the Commission’s October 27 Direction for Review should not be vacated, and why 

34 FMSHRC Page 1585
Performance’s application for temporary relief should not be dismissed given the occurrence of 

intervening events that impacted this proceeding. 

On June 27, 2012, the Commission received from Performance an Unopposed Notice of 

Withdrawals and Motion to Dismiss. In the motion, Performance states that it withdraws the 

petition for discretionary review filed in this case, withdraws its application for temporary relief 

from the contest of the section 103(k) order, and requests that the Commission dismiss the 

proceeding. The Secretary does not oppose the motion. 

Upon consideration of Performance’s motion, it is granted. We hereby vacate our 

October 27 Direction for Review, and dismiss Performance’s application for temporary relief.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 1586
 

 

 

Distribution: 

Peter Gould, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202 

pgould@pattonboggs.com 

Benjamin D. Wood, Esq. 

Robert D. Slevin, Esq. 

Patton Boggs LLP 

2500 M Street, N. W. 

Washington, D.C. 20037 

bwood@pattonboggs.com 

rslevin@pattonboggs.com 

Judith Rivlin, Esq. 

Miner’s Representative United Mine Worker’s of America 

Performance Coal Co 

18354 Quantico Gateway Dr., Suite 200 

Triangle, VA 22172 

Rachel & Mark Moreland, Esq. 

Moreland & Moreland, L.C. 

117 E. Washington St., P.O. Box 871 

Lewisburg, WV 24901 

Edward Waldman, Esq. 

Derek Baxter, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-5268 

34 FMSHRC Page 1587
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

July 18, 2012 

SECRETARY OF LABOR, : Docket No. SE 2010-658-M

 MINE SAFETY AND HEALTH : A.C. No. 08-00051-215587

 ADMINISTRATION (MSHA) : 

: Docket No. SE 2010-768-M 

v. : A.C. No. 08-00051-218361 

: 

: Docket No. SE 2010-778-M 

TARMAC AMERICA, LLC : A.C. No. 08-00931-218364 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On July 1, 2011, the Commission received from Tarmac 

America, LLC (“Tarmac”) three motions seeking to reopen three penalty assessment proceedings 

and relieve it from the default orders entered against it.1 

On March 17, 2011, Chief Administrative Law Judge Lesnick issued three Orders to 

Show Cause, which by their terms became Default Orders if the operator did not file an answer 

within 30 days. These Orders to Show Cause were issued in response to Tarmac’s failure to 

answer the Secretary’s August 17 and 18, 2010, Petitions for Assessment of Civil Penalty. The 

Commission did not receive Tarmac’s answers within 30 days, so the default orders became 

effective on April 18, 2011. 

Tarmac asserts that its previous safety manager failed to notify management or counsel of 

the petitions and orders. Tarmac states that it sent the orders to its counsel as soon as they were 

discovered after the safety manager left the company. The Secretary does not oppose the 

requests to reopen. 

1

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

consolidate docket numbers SE 2010-658-M, SE 2010-768-M and SE 2010-778-M, all captioned 

Tarmac America, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

34 FMSHRC Page 1588
The judge’s jurisdiction in this matter terminated when the defaults occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s orders here have become final 

decisions of the Commission. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable 

neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if 

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

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

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

34 FMSHRC Page 1589
Having reviewed Tarmac’s requests and the Secretary’s responses, in the interest of 

justice, we hereby reopen the proceedings and vacate the Default Orders. Accordingly, these 

cases are remanded to the Chief Administrative Law Judge for further proceedings pursuant to 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 1590
 

 

Distribution: 

Denise E. Giraudo, Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart, P.C. 

1909 K Street NW, Suite 1000 

Washington, DC 20006 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

34 FMSHRC Page 1591
ADMINISTRATIVE LAW JUDGE DECISIONS 
	
34 FMSHRC Page 1592
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

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

July 2, 2012 

TIFFANY MYERS, : DISCRIMINATION PROCEEDING 

Complainant : 

: Docket No. WEST 2011-1337-DM 

: RM MD 2011-08 

: 

v. : Mine I.D. 02-00024 

: Morenci Mine 

FREEPORT-MCMORAN MORENCI, INC., : 

Respondent : 

DECISION 

Appearances: Tiffany Myers, Fayetteville, Arkansas, pro se; 

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly, 

PLLC, Denver, Colorado, for Respondent. 

Before: Judge Manning 

This case is before me on a complaint of discrimination brought by Tiffany Myers 

against Freeport-McMoRan Morenci, Inc., (“Freeport”), under section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (the “Mine Act”). Ms. Myers 

contends that she was discriminated against because she complained about safety issues at the 

Morenci Mine. An evidentiary hearing was held in Tucson, Arizona. Freeport filed a post-trial 

brief and Myers filed a post-hearing submission. For the reasons set forth below, the 

discrimination complaint is dismissed. 

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND 

FINDINGS OF FACT 

Freeport operates a large surface copper mine in Greenlee County, Arizona. Freeport 

hired Myers as a haul truck driver in July 2010. The haul trucks used at the mine are Caterpillar 

793 trucks, which weigh about 260 tons. Each tire on these trucks is about 13 feet in diameter. 

At the time Myers was working at the mine, Freeport employed between 375 and 400 haul truck 

drivers. About 74 or more haul trucks were in operation during each shift. The mine operated 

24 hours a day on two 12-hour shifts. The operation of the trucks was controlled by dispatchers 

and supervisors in the command center, also known as “the tower.” Driver fatigue was a 

concern to Freeport. It believed that fatigue-related haul truck accidents and injuries were a 

problem. 

In August 2010, Freeport began placing Driver State Sensor devices (“DSS”) in the haul 

trucks. Based in part on the representations of the manufacturer, Freeport believed that these 

34 FMSHRC Page 1593
DSS devices would help prevent fatigue and distraction-related accidents.1 These devices are 

intended to monitor driver fatigue and inattention and warn the driver if it detects such events. 

The DSS system consists of a camera mounted on the dashboard of the truck that centers on the 

corners of the driver’s eyes and the corners of the driver’s mouth to create a model of that 

particular driver. The system then monitors the driver’s eyelid closure rates and the direction 

that the driver is looking. The DSS device monitors three different events: fatigue events, 

distraction events, and tampering events. If the DSS device detects what may be a fatigue event, 

an alarm is sounded in the cab of the truck and the driver’s seat vibrates. In addition, the DSS 

records a video of the driver’s eyes for a short period of time. The video and nine still photos are 

immediately emailed to the tower. Examples of emails showing the still photos are in 

Respondent’s Exhibit No. 33. (Tr. 263). The dispatcher then reviews the photos to make sure 

that the DSS did not record a “false-positive.” If it appears to be a fatigue event, the dispatcher 

calls the driver on the radio to see how he or she is doing. 

The second type of event is the “distraction event.” Such an event occurs when the 

driver looks away from the center of the roadway for more than four seconds at a time. When 

the DSS detects a distraction event, an automated female voice says to the driver, “eyes on path” 

or “eyes forward.” No alerts are sent to the dispatcher for distraction events. When the DSS 

devices were first installed in the trucks, they were calibrated differently so that a distraction 

event was triggered when the driver looked away from the road for a shorter period of time. If 

the camera is covered or unable to read the driver’s face, the DSS device takes a snapshot of the 

driver’s head and upper body. The dispatcher is required to address this situation by either 

radioing the driver or having someone intercept the truck. 

There is no doubt that when the DSS devices were first installed, many of the drivers 

complained about them. Drivers believed that the devices invaded their privacy and that they 

were a nuisance because of the number of false-positive alarms. Freeport does not deny that, 

when the system was first introduced, it had some glitches. It also does not deny that the system 

will continue to produce false-positives from time to time when the driver is actually not starting 

to drift off to sleep. As would be expected, there were rumors that the DSS devices continuously 

digitally recorded the drivers so that the dispatchers could see what they were doing at any given 

time. There were a number of tampering events soon after the DSS system was installed in 

which drivers tried to disable the camera in their cab. No disciplinary notices were issued to 

drivers for tampering during this adjustment phase, but drivers were told that such tampering 

would not be tolerated in the future. Freeport contends that none of the complaints it received 

from other drivers alleged that the DSS system created a safety hazard. 

As discussed below, based on the evidence presented at the hearing, I find that once the 

drivers got used to the DSS system and additional calibrations were made so that alarms and 

voice commands were not activating as frequently, many of the drivers came to the conclusion 

1

 Freeport’s parent company had previously installed DSS devices at a smaller mine as a 

test of the system. 

34 FMSHRC Page 1594
that the DSS system helped reduce the number of accidents and close calls. Based on 

information Freeport gathered concerning accident rates, it made a business decision that the 

safety benefits of the DSS system outweighed any of its drawbacks. 

Ms. Myers distrusted the DSS system from the time the device was first installed in her 

truck. The first concerns that she communicated to Freeport and to Dean Croke, an executive at 

Seeing Eye Machines, the company that installed the devices at the mine, concerned whether the 

laser lights would hurt the driver’s eyes, the intrusive nature of the devices, the fact that the 

alarm scared her, and her contention that the system simply did not work correctly. She 

contended that the system did not set off a fatigue alarm when she actually started to doze off but 

frequently sounded a fatigue alarm when she was totally alert. Freeport personnel met with Ms. 

Myers on a number of occasions to discuss the system. 

A. Chronology of Events 

Ms. Myers testified that she started working at the mine in July 2010 driving haulage 

trucks. She stated that until Freeport installed the DSS system in the trucks she did not have any 

conflicts with management. In August 2010 she started driving trucks with the DSS system. 

She noticed that the DSS did not operate “anything like they claimed it works.” (Tr. 16). Myers 

testified that as soon as Freeport started putting the devices in the trucks she immediately began 

to have physical symptoms that were “unbearable.” Id. She suffered from migraine headaches, 

facial numbness, and her “nerves were beyond shot.” (Tr. 16, 95). She testified that she nearly 

ran over other pieces of equipment because the DSS was distracting to her. She also believes 

that the DSS monitoring system gave her post-traumatic stress disorder (“PTSD”). 

She described the system as follows: 

It’s kind of like having a cattle prod in your truck and every time 

you blink or turn your head or look at your gages or look at [the 

truck’s computer screen], the machine goes off and scares the 

living daylights out of you. You turn your head, you look in your 

mirrors, anything you do that is required of you as part of your job 

and the machine goes off. You jump sky-high. It’s unbearable. 

(Tr. 17). She testified that if she really was starting to nod off, the system did not activate. It 

only sounded the fatigue alarm when she was alert and doing her job. (Tr. 17-18). She 

described the alarm as being six to ten inches from her head and she stated that it “goes off like 

an air horn.” (Tr. 18). James Hiler, a quality analyst at Freeport, described the alarm as a 

buzzing sound similar the buzzer on a door of a building when a person gets “buzzed in.” (Tr. 

259). Myers also said that “all day long your have to listen to a machine [voice] tell you not to 

do your job the way you’re doing your job, which is very frustrating. . . .” (Tr. 19). 

Myers testified that the first thing that she did after the DSS devices were installed was 

email the company that makes them. She was advised to share her concerns with Mark Bartlett, 

34 FMSHRC Page 1595
 

who was the Freeport representative who coordinated the installation of the DSS devices. He 

worked at the company’s technology center in Tucson. After about three months of email 

conversations with Bartlett, he advised her to speak with her supervisor at the mine about her 

problems with the DSS. (Tr. 22). Myers also communicated with Croke at Seeing Eye 

Machines on many occasions starting in August 2010. 

Myers testified that all of the haul truck drivers began complaining about the DSS system 

among themselves.2 (Tr. 25). She testified that she acted as the spokesperson for the drivers 

when complaints were made about the DSS system. As discussed above, she emailed the 

drivers’ concerns to Croke and Bartlett.3 Id. Bartlett told Myers that he would anonymously 

pass on the concerns of the drivers to mine management. (Ex. C-3). 

Ms. Myers testified that as soon as she started complaining about the DSS, she was 

harassed by mine management. The harassment was subtle at first and she did not see it as 

harassment until she thought about it later. For example, Myers testified that Vicki Propes, her 

dispatcher, stopped answering the radio when Myers tried to call her. (Tr. 30, 55). Myers 

testified that Propes harassed her in a wide variety of ways although Myers attributed some of 

this harassment to the fact that Propes picked on female drivers. (See Ex. C-11). Myers believed 

that she had to abide by every company rule, such as removing jewelry while driving, but other 

employees were not required to follow company rules. (Tr. 81). She also testified that the 

company started putting her on trucks that had something wrong with them, whether it be bald 

tires or trucks that would not dump properly. (Tr. 31). Throughout the hearing, she provided 

examples of when she was assigned to trucks that she believes were not functioning properly. 

Myers also alleges that management would take action that would cause her to get a late 

start on her shift so that her production was lower than it should have been. She would be put on 

a van to take her to her truck that traveled throughout the mine before it reached her truck, for 

example. (Tr. 63-64). Myers also stated that management would spare out her truck for no 

reason at all and order her to park for a while. Such instructions reduced her production levels. 

2

 She testified that the drivers were initially concerned that the LED lights on the camera 

were actually laser lights that could damage their eyes. She was advised that the lights were 

LED lights. (Tr. 148). They were also concerned that the DSS devices in their trucks were not 

calibrated correctly because they were going off for no reason. (Tr. 26). She also stated that the 

fatigue alarm scared the drivers, which raised a concern that they could have an accident. (Tr. 

27). She testified that drivers told her that they did not want to raise these concerns with 

management because they could not afford to lose their jobs. (Tr. 28). 

3

 Myers presented this email correspondence and her contemporaneous notes as exhibits 

at the hearing. These exhibits provide more detail as to this correspondence. For example, 

Bartlett advised Myers that one reason the DSS is calibrated to track the movement of a driver’s 

eyes and to provide a reminder to keep his eyes on the road is because of management’s concern 

that drivers were texting on their cell phones while operating the trucks. (Ex. C-1). 

34 FMSHRC Page 1596
(Tr. 72). Myers said that when she complained to the mine’s human resources department 

(“HR”), she was told that there was no evidence that Propes was ignoring her calls or that she 

was being treated unfairly or differently than other drivers. (Tr. 56). All of these annoyances 

started to add up in her mind. She documented these events in her notes. (Tr. 60; Exs. C-8, 10, 

12-15, 21 ). After three months of this, she called Freeport’s safety hotline as discussed below. 

Ms. Vicki Propes was Myers’ dispatcher between August and the end of October 2010. 

On October 10, 2010, Propes asked Myers to come to the safety office in the dispatch area so 

that Propes could show her what the DSS photos look like. (Tr. 381). Propes testified that the 

DSS registered a number of fatigue alerts with Myers during that shift. Propes testified that 

when she showed Myers the photos, Myers told her that she was just “screwing with” the DSS. 

(Tr. 382). In the statement that she signed that evening, Propes said that Myers responded that 

she was not tired at the time the photos were taken and Myers told her that she was “just testing 

the machine.” (Ex. C-9). Propes told Myers that she should never tamper with the DSS. Myers 

denied ever telling Propes or anyone else that she was testing the machine. (Tr. 68). Propes 

testified that Myers never complained to her about any safety concerns with the DSS. Propes 

said that this event on October 10 was the only time she discussed the DSS with Myers. (Tr. 

383). Propes also denied ignoring calls from Myers on the radio or that she treated Myers 

differently than the other haul truck drivers. 

Robert Fohr, the mining operations supervisor, testified that trucks are frequently parked 

for a while for operational reasons and that he does not believe that anyone ever intentionally 

downed Myer’s truck. (Tr. 355). Dale Lundeen, another dispatcher, testified that it was 

common for a shovel to go down during a shift and, when that occurs, several trucks may need to 

be parked for a while until they can be assigned to a different shovel. (Tr. 308-09). Truck 

assignments and operations are actually determined by a computer rather than individual 

managers. (Tr. 374). 

Myers testified that on October 15, 2010, as she was driving around a corner, the alarm 

went off for no reason and she almost ran over the crawler because the alarm scared her.4 (Tr. 

74-75, 231; Ex. C-10 p. N26; Ex. R-38 p. 2). Myers used this incident as an example of how the 

DSS creates safety hazards for drivers. She said that her DSS constantly set off the alarm for no 

reason during October. 

On October 27, 2010, Jay Hiler, who was a “quality leader” at the mine, called Myers 

into his office. Management believed that Myers deliberately covered the camera on that date. 

Myers testified that a roll of paper towels must have rolled in front of the camera. (Tr. 50). 

Hiler advised her that covering the DSS camera is considered to be tampering with a safety 

4

 Myers uses the term “alarm” to refer to both the fatigue alarm and the voice command 

for distraction events. It appears that the voice command activated as she was trying to pass the 

crawler. The use of the term “crawler” was not explained at the hearing but a crawler is 

generally used to describe a slow-moving track-mounted vehicle such as a bulldozer. 

34 FMSHRC Page 1597
device, which can result in discipline or termination. (Tr. 277-78). He also attempted to calm 

her concerns that she was being watched by the camera all the time. He advised her that photos 

are taken only when the DSS is triggered by a “sleep event.” (Ex. C-4 p. 2). Myers believes that 

this warning actually occurred because Bartlett told mine management that she was complaining 

about the DSS system. (Tr. 48-49). She described the Morenci Statement Form signed by Hiler 

as the beginning of the “paper trail” management kept on her. (Tr. 49; Ex. R-29). 

On October 31, 2010, Myers was transferred from Vicki Propes’s crew to Dale 

Lundeen’s crew. Myers testified that the harassment continued. (Tr. 94). The DSS continued to 

register false positive alarms for no apparent reason. Id. On November 4, 2010, Bartlett sent 

Myers an email telling her that the drivers need to leave the system alone. (Ex. C-6). “Too 

many people are removing the fuses and disabling the system.” Id. 

Starting in October 2010, Myers started taking contemporaneous notes, while in the cab 

of her truck, documenting the events of the day. She took hundreds of pages of notes. On the 

days when she claimed that the DSS activated more frequently, she documented each event 

separately. In one of her notes dated April 18, 2011, she wrote, “I am trying to drive and 

document this stupid machine, this is unsafe! It is stressing me out!” (Ex. C-21, p. N188). She 

was obviously obsessed with the idea that the DSS did not work properly. Myers testified that 

on November 30, 2010, her face went numb near the end of her shift and she went to the 

emergency room. (Tr. 95, Ex. C-13 p. N67). She believes that her face went numb from all the 

stress caused by the DSS device. (Tr. 95). 

On December 9, 2010, Lundeen called her to ask her if the camera in her truck was 

pointed to the ceiling. From this, Myers concluded that managers were able to look at her with 

the camera at any time and so she started giving a thumbs up sign whenever the DSS alarmed 

without reason to let management know that she is okay. (Tr. 96). Myers testified that if she 

told management that she was “testing” the DSS machine, what she meant was she testing to see 

how much of her they can see. Id. She testified that if management “can see my whole body, 

[they] can see my thumbs are up and I’m good to go.” (Tr. 96-97). 

In her performance evaluation dated December 10, 2010, Myers was rated poorly with 

respect to her production. (Ex. C-7). She received the equivalent of a fully satisfactory rating 

for the other performance standards. Myers attributes this poor rating to the treatment she 

received after she complained about the DSS system. She contends that this element of her 

performance suffered because of all the actions management took “to mess with” her production. 

(Tr. 58). 

Myers testified that the DSS system only kept her from falling asleep one time during her 

employment at Freeport. On January 19, 2011, she had only slept three hours the night before 

and the DSS alarm sounded for a legitimate reason because she was starting to nod off. (Tr. 100; 

Ex. C-13, p. N102). 

34 FMSHRC Page 1598
On February 14, 2011, Ms. Myers was suspended with pay by Freeport. Freeport 

suspended her because its managers believed that she was closing her eyes on purpose to make 

the DSS activate. It appears that Myers told Dale Lundeen that she “made” the DSS “go off.” 

(Tr. 105). According to Myers, management interpreted this to mean that she was purposefully 

making the DSS anti-sleep alarm activate but what she actually meant was that her normal work 

activities made the alarm sound. Id. She characterized the meeting with management as 

follows: “[T]hey acted like a bunch of piranhas on this day and my anxiety level was out of this 

world.” Id. She gave a statement to mine management on a Morenci Statement Form at 

management’s request. (Ex. C-15). In the statement she reported that the DSS went off 

repeatedly during her previous shift. She further stated: 

Since I have to work with the DSS, I want to know how it works 

and since the information I was given about the DSS is faulty – I 

tested the system myself to see how it works. 

Conclusion – the system does go off when you close your eyes 

and are not sleeping. I feel like I have a right to know how the 

DSS works. 

(Ex. C-15). At the hearing, Myers stated that management put words in her mouth and that her 

statement misinterprets what she meant. (Tr. 106, 251). She testified that all she meant was that 

the DSS does not function properly because it goes off all the time when drivers are simply 

trying to do their job. 

Myers was given a written counseling as a result of these events. The counseling record, 

states in part: 

On February 15, 2011, Ms. Myers was operating the 592 haul 

truck when she admitted to purposefully closing her eyes multiple 

times when driving on an active haul road. This is in violation of 

the General Code of Safe Practices; Code of Conduct. . . . 

Specifically, employees will not engage in distracting activities 

while operating a company vehicle or piece of equipment. 

(Ex. C-16). Myers testified that she never used the words “on purpose” when she was called in 

by management to explain why there had been so many alarms during that shift. (Tr. 109-11). 

She complained that normal blinking sets off the alarm. (Tr. 110). She felt intimidated by the 

entire process and felt she was being held hostage until she signed a statement. (Tr. 111-14). 

Myers testified that she was suspended with pay for this infraction. (Tr. 113-14). She further 

stated that whenever her alarm went off and photos were sent to dispatch, the response from the 

dispatcher was that she must be doing her “eye exercises.” (Tr. 115). It became a joke at the 

mine. 

34 FMSHRC Page 1599
Lundeen testified that dispatch received numerous alerts from Myers’ truck during her 

February 14-15 shift. Gilbert Ruiz, her immediate supervisor, told Myers to park the truck and 

he went to visit her. (Tr. 321). He reported that she seemed to be fine. A few hours later, Myers 

had three alarm events in a row. At that point, Amy Pooler picked up Myers and brought her to 

the dispatch tower. Lundeen testified that as she walked into the office, Myers yelled out “I 

wasn’t sleeping, I was doing it on purpose.” (Tr. 322). When he tried to discuss it with her, all 

she could say was that something was wrong with her DSS, it was going off all the time, and she 

was not sleeping. She told everyone in the area that the DSS was “stupid” and unsafe. Id. 

Lundeen tried to tell her that she had been having “microsleeps” like drivers often have, that the 

DSS system was doing what it was supposed to be doing, and that maybe she was too sleepy to 

be driving.5 (Tr. 323). 

Myers did not appear to be sleepy and she was taken back to her truck. Lundeen said 

that, with all the traffic and other obstacles on the haulage roads, Freeport could not allow 

drivers to close their eyes on purpose while driving. He discussed Myers’ actions with Robert 

Fohr, the mining operations supervisor. They looked at the photos that were emailed from 

Myers’ truck and they were particularly concerned that one event showed that her eyes were 

closed 2.57 seconds while she was driving 22.3 miles per hour. (Tr. 324; Ex. R-33). Lundeen 

wrote up a statement of these events. (Ex. R-25). Lundeen testified that when he received a 

DSS alert from another driver sometime later and he called this driver on the radio, the driver 

replied that he was okay, he was just doing his “eye exercises.” (Tr. 326-27). From that point, 

many employees, including Lundeen, made jokes about eye exercises. 

Fohr’s testimony about these events was consistent with Lundeen’s testimony. (Tr. 349-

51). He told Myers that night that intentionally closing one’s eyes was an unsafe act and it 

would not be tolerated. (Tr. 350). He also wrote a statement about the events. (Ex. R-36). He 

testified that a driver may not even be aware that he is experiencing a microsleep event. (Tr. 

346). He could not recall any safety complaints concerning the DSS from other drivers and 

some have told him that the DSS helped keep them awake. (Tr. 345-48). 

Amy Pooler, a mine operations technician, also was present on the evening of February 

15. Pooler confirmed that Myers told everyone that she was closing her eyes on purpose. 

Myers’ statement that she did not like the DSS and that she had been closing her eyes on purpose 

angered Pooler. (Tr. 404). Pooler often investigated accidents caused by sleepy drivers and had 

noticed a drop in such incidents after the DSS system was installed. (Tr. 402). Pooler uses 

pickup trucks to travel around the mine and she believes that the DSS helps ensure her safety 

because the haul trucks are so large. 

5

 Hiler defined a “microsleep” as what happens just before a person starts to fall into a 

deeper sleep. (Tr. 276). The DSS alarm is set to go off about 2.5 seconds into a microsleep. He 

based this testimony on the training he received when the DSS system was installed. After 

about 5 seconds, a person’s neck muscles start to relax and his head will bob. Id. 

34 FMSHRC Page 1600
On March 10, 2011, mine management participated in a problem-solving meeting with 

Myers because Myers did not believe it was fair that she was given a final written counseling as 

a result of the events of February 15. (Tr. 445). She had been disciplined for closing her eyes on 

purpose, which was considered to be a safety hazard for distracting activities. (Tr. 445-46). 

Tammy Lockmiller, an HR generalist, told Myers that, by closing her eyes on purpose, she had 

been tampering with the DSS equipment. Other employees had been disciplined for tampering 

with the DSS system. (Tr. 446; Ex. R-48). Ms. Lockmiller participated in the investigation of 

this incident along with Fohr, Lundeen and Ron McDaniel, another supervisor. They concluded 

that Myers closed her eyes on purpose. (Tr. 447; Ex. R-44). Myers also said that she gave the 

thumbs-up sign when she was in the truck to show dispatch that everything was okay. Fohr told 

her that she should not be driving with her eyes closed and one hand off the steering wheel to 

signal with her thumb. Id. Because Freeport considered Myers’ behavior to be a very serious 

safety matter, she was issued a final written counseling. (Tr. 448-49). 

At some point in February 2011, Myers called MSHA to file a hazard complaint about 

the DSS machines. (Tr. 129-30). The details of this complaint are not clear, but MSHA did not 

take any enforcement actions. Fohr testified that, when an MSHA inspector came to the mine to 

investigate a safety complaint about the DSS, no citations were issued and the MSHA 

investigator told him that he thought the DSS system “was a really good safety device.” (Tr. 

352). 

On April 20, 2011, Myers picked up a load from a shovel pit that had been “freshly dug.” 

(Tr. 116). Myers testified that there were many rocks in the area. As she was driving her truck 

up a ramp, she got a flat tire. According to Myers, the following day, Tammy Lockmiller from 

HR came into the lineup room, pulled her out, told her that she was suspended, took her badge 

and walked her to the mine gate. (Tr. 117). 

Fohr testified that tires on the haul trucks cost between $30,000 and $50,000 each. (Tr. 

352-52). As a consequence, Freeport makes every effort to protect them and get as much 

mileage out of them as possible. All flat tires are investigated, including the flat tire of Myers. 

(Ex. R-31). The flat tire was caused by a rock. Lockmiller testified that she was put on 

investigatory leave with pay because she had already been issued a final written counseling. 

Myers was allowed to return to work without receiving any discipline. 

Myers testified that on May 4, 2011, she pulled her backpack out of her car and felt a 

“stretch” in her shoulder. (Tr. 123). It was not painful. When she went into the lineup room, 

she turned her head to the left and felt “unbearable, excruciating pain.” Id. An EMT was 

brought in to examine her. The EMT asked her if she had been roughly loaded recently and she 

replied “yes.” (Tr. 124; Ex. C-18). Myers testified that as soon as she said that, Freeport pursued 

it because you can be disciplined for failing to report that the shovel operator loaded a truck in a 

rough manner. (Tr. 124-25). It is clear that Myers does not believe that the rough loading 

caused her neck pain and the company pushed that theory in order to suspend her. Her truck was 

roughly loaded about six days earlier. She was suspended for two weeks with pay for this 

incident pending an investigation. (Tr. 124). 

34 FMSHRC Page 1601
Myers testified that when a driver believes that a shovel operator loaded her truck too 

roughly, she has to make a quick decision whether she was injured by the incident and whether it 

should be reported. (Tr. 127). She testified that she determined that she was not hurt so she did 

not report it, but that she did tell the shovel operator about it and he apologized. A rough load 

can throw the driver around and cause an injury as well as damage to the truck. 

Lockmiller testified that Myers complained about a hurt neck one morning in lineup and 

said that it was due to a rough load. (Tr. 450). Lockmiller testified that any type of safety 

incident that results in an injury must be reported by the employee to management. She was 

placed on investigatory leave because Myers did not report the injury. Investigatory leave is not 

considered to be discipline by Freeport but it gives the company the opportunity to investigate 

the incident. Following the investigation, she came back to work at the mine. (Tr. 451; Ex. R49). 

Myers testified that she frequently complained to Tiffany Ulibarri and Tammy 

Lockmiller in HR about the way she was being harassed. (Tr. 62, 130-31). She said that they 

both indicated that they investigated her complaints but Myers felt that they merely gave her 

sarcastic responses. Ms. Ulibarri testified that Myers did complain about being harassed but she 

did not give her any specific examples, except for the jewelry incident. (Tr. 419). Myers also 

complained to her that the DSS made her nervous. Myers told her about the incident where the 

DSS alarmed as she was trying to pass a crawler. Ulibarri testified that Myers complained that 

the system made her nervous but did not tell her that she almost hit the crawler. (Tr. 420). 

Ulibarri testified that Myers frequently complained about the DSS, but her complaints were of a 

general nature that did not include any specific safety complaints. She told her that it was “loud 

and obnoxious,” it made her nervous, it never worked when it was supposed to, and it only 

worked when she was not falling asleep. (Tr. 421). Starting in March 2011, Myers complained 

that the DSS was giving her migraine headaches. Ulibarri testified that she told Myers about 

filing a workers compensation claim. She also had someone from the safety department check 

out the DSS system on Myers’ truck, but the system was functioning properly in the same 

manner as on the other trucks. No other drivers made similar complaints to Ulibarri. (Tr. 422). 

One driver apparently was headed toward a berm when he started falling asleep but the DSS 

woke the driver before he went over it and he credits that system for saving his life. Id. 

The Rocky Mountain District of MSHA received Myers’ complaint of discrimination on 

May 4, 2011. (Ex. C-19). In the complaint, under the section of the form entitled Date of 

Discriminatory Action, Myers wrote: “From Aug. 2010 - April 2011; Feb 16, 2011 Suspended, 

April 21, 2011 Suspended.” Under Summary of Discriminatory Action she wrote: “I have been 

suspended, harassed, and retaliated against for bringing up safety concerns.” She attached a 

four-page typed statement that provided more details. Id. By letter dated June 16, 2011, Myers 

was advised that MSHA did not believe that Freeport discriminated against her. 

Myers testified that on June 15, 2011, there was a great deal of smoke in the air from 

forest fires. (Tr. 132). Because she was having difficulty breathing, she asked the safety 

department for a respirator. She had to leave the mine site and go to a clinic to be fitted for a 

34 FMSHRC Page 1602
respirator. Myers testified that Amy Pooler came to her and told her that if she left the property 

she would be fired. (Tr. 132). Myers went to the clinic with Pooler to get fitted. While she was 

waiting, she walked down the hall to her own personal doctor whose office was in the same 

building, to get a shot for her migraine headache. Myers testified that when she tried to return to 

the mine, she was denied entry. (Tr. 133). 

On cross-examination, Myers agreed that she was put back on a truck when she returned 

after her request for light duty work was denied. (Tr. 188). Myers noted that the air 

conditioning was not working on the truck. Although she asked to be switched to a different 

truck, she did not ask that she be immediately assigned to another truck because of a medical 

condition.6 (Tr. 190). She never provided Freeport with a note from her doctor seeking special 

accommodation on the basis of this condition.7 . 

Pooler said that she took Myers to the clinic, had her fit-tested, had a respirator made, 

and returned to the mine. The entire process took about five hours. (Tr. 406). Sometime after 

Myers resumed driving a haul truck, Pooler received a call from a supervisor, Rene Varela, 

asking her to meet him and Myers. Varela told Pooler that he had observed Myers backing up 

her truck at a shovel with door open and she was not wearing a seatbelt. Pooler arrived at the 

meeting point before Myers and Pooler testified that she could see that the shoulder strap on 

Myers’ seatbelt was behind her back. (Tr. 407). Pooler said that when she asked Myers whether 

she was wearing her seatbelt correctly, she replied “no.” (Tr. 408). Pooler then drove Myers to 

the office where she was given an “investigation with pay” notice.” (Tr. 409). Myers admitted 

again that she had not been wearing her seatbelt correctly. Failure to use the shoulder strap on 

the seatbelt in a violation of company policy. Pooler wrote up a statement on these events. (Tr. 

R-40). 

Myers agreed that Freeport advised her that the reason for her termination was that she 

drove this truck with the door open without wearing her seat belt properly. (Tr. 181, 185, 189; 

Ex. R-20, 22). She admitted that she had the door open on her truck, but only when she was 

waiting in line at the shovel not when she was moving. (Tr. 193). She also admitted that she 

was not wearing the shoulder strap on the seatbelt. 

6

 Myers testified that she suffers from hypohydrosis, which she described as an inability 

to sweat or a reduced ability to perspire. (Tr. 216). It is clear the Freeport management was 

unaware that she had this condition. (Tr. 429). 

7

 Normally, a driver is reassigned to an air-conditioned truck after driving a truck with a 

broken air-conditioner for no more than two hours, but accommodations can be made so that a 

the driver is reassigned to another truck right away. (Ex. R-14). Pooler testified that several 

truck drivers have been given special accommodation from the two-hour rule due to a medical 

conditions. (Tr. 412). 

34 FMSHRC Page 1603
Lockmiller testified that Myers was put on investigatory leave following this incident. 

(Tr. 452). The failure to wear personal protective equipment almost always results in 

disciplinary action. (Tr. 452-53; Ex. R-47). Although Lockmiller was not directly involved in 

the investigation of this incident, she prepared the executive summary of the incident. (Tr. 453; 

Ex. R-50). Based on the company’s investigation into this incident, Myers was discharged from 

her employment. (Tr. 453-54; Ex. G-21). Other drivers have been discharged for failure to wear 

a seatbelt. (Ex. R-47). 

At the hearing, Myers repeatedly testified that she never used the words “on purpose” 

when discussing her eyes being closed. She feels that her actions did not create a safety hazard, 

she never started to veer off the road or run into anything. (Tr. 473). She feels that she was 

always in control of her truck and that the only hazard presented was the DSS alarms that scared 

her. 

In her post-hearing submission as well as in her pre-hearing report, Myers asked that I 

issue an order granting her relief. Among other remedies, Myers asked that I reinstate her to her 

job as a haul truck driver, order that Freeport remove any documents from her personnel file that 

were used against her, order that she be awarded back-pay, order that Freeport draft a letter of 

recommendation for future employment, order that Freeport pay the cost of her moving expenses 

from Arizona to Arkansas and back, and order that the DSS machines be removed from the 

haulage trucks and replaced with Sirius radios. 

II. DISCUSSION WITH FURTHER FINDINGS 

AND CONCLUSIONS OF LAW
 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners “to 

play an active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 

95-181 at 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at 

623 (1978). 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine 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 mine 

operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving 

34 FMSHRC Page 1604
 

that it was also motivated by the miner’s unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see 

also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987). 

A. Protected Activity 

Freeport argues that Myers did not engage in protected activity. It contends that her 

complaints lacked substance and clarity. It also contends that most of Myer’s complaints were 

idiosyncratic and not shared by other drivers. Myers felt that the DSS machine was annoying 

and intrusive, but Freeport notes that many safety devices in the mining industry are annoying 

and intrusive. Freeport also maintains that Myers exaggerated her complaints for the court. 

I find that the vast majority of Myers’ complaints were not about her personal safety or 

the safety of other miners, but related to her personal dislike of the DSS machine and its effect 

on her. She believed that it did not work as it was supposed to and that it frequently went off 

when she was simply trying to do her job. She did testify that on October 15, 2010, the DSS 

scared her as she was passing another piece of equipment (a crawler) and she believed that, as a 

consequence, she could have had an accident. She wrote in her personal note: “3:40 EOP trying 

to pass 62 crawler by upper fuel dock.” (Ex. R-7). In preparation for trial, she wrote a note on 

that page that said when the DSS machine went off as she was trying to pass the crawler on that 

day, it “scared me so bad that I took her eyes off the crawler and when I look back at him I am 

almost running him over which scares me even more.”8 Id. The note goes on to state she 

reported the event to Tiffany Ulibarri. Ms. Ulibarri testified that Myers mentioned the event to 

her and complained about the voice that kept saying “keep your eyes on the path,” as she was 

trying to pass the crawler, but Ulibarri denied that Myers ever said that it almost caused her to 

have an accident. (Tr. 419-20). Near misses are required to be reported. I credit Ulibarri’s 

testimony in this regard and find that Freeport was not aware that Myers believed that the DSS 

machine caused her to have a near miss with the crawler. 

Many of Myers’s complaints about the DSS directly concerned the effect that the DSS 

alerts were having on her personally. She complained that it gave her migraine headaches, made 

her nervous, and that she ended up with PTSD. There is no proof that these problems are 

directly related to the DSS except for her testimony. Myers said that she was suffering from 

8

 Freeport argues that the subsequent notes Myers’ made in preparation for the hearing 

should not have been admitted into evidence and should not be relied upon by the court in 

reaching its decision in this case. (Freeport Br. 3-4). These handwritten notes are on the 

margins of the contemporaneous notes she took when she was a haul truck driver. Many of these 

notes were added after discovery was completed or were altered after discovery with the result 

that Freeport did not have the material in preparation for trial. The request to strike these 

additional notes is denied simply because Ms. Myers is proceeding pro se. I have not given the 

notes that she added in preparation for trial any weight except in those instances in which she 

offered testimony on the subject covered by these notes. 

34 FMSHRC Page 1605
“massive, massive anxiety” and testified that she told her physician that her anxiety could be 

related to her recent divorce. (Tr. 90). Myers also testified that her PTSD may be linked with 

the abusive relationship she had with her ex-husband. (Tr. 161). Myers may well have been 

more sensitive to the DSS than other truck drivers because of the turmoil in her personal life. 

Her serious problems with the DSS appear to be rather idiosyncratic to her. Although some of 

the other truck drivers did not like the DSS, they did not lodge complaints that these devices 

created serious safety hazards. Other drivers who operated the trucks assigned to Myers did not 

complain that the DSS activated more frequently than such devices normally do on other trucks. 

Freeport’s safety department checked out her truck and the DSS to see if there were operational 

problems, but nothing about her truck was abnormal. The DSS in her truck operated in the same 

manner as the other haul trucks. 

I do not credit Myers’ testimony that the fatigue alarm was loud like an air horn or that 

the vibration of the seat was like having a cattle prod in the truck. I find that Myers did not 

establish that the fatigue alarm and the distraction event voice command had a reasonable 

potential cause to cause accidents at the mine. 

The Commission and its judges do not have the authority to provide relief to 

complainants with mental or physical disabilities that prevent them from performing the job 

duties normally assigned to miners. “It is clearly not the purpose of the Mine Act, but rather 

worker’s compensation, social security disability and other similar laws to provide loss of 

income protection” when a miner is unable to perform work normally assigned to miners. 

Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1126 (July 1995) (ALJ). Idiosyncratic 

complaints that arise from a miner’s unique physical, emotional, or mental capabilities are 

generally not protected by the Mine Act. See Price v. Monterey Coal Co., 12 FMSHRC 1501 

(Aug. 1990). Although Myers holds a good faith belief that the DSS creates a safety hazard, the 

evidence establishes that her problems with the DSS are a result of her particular emotional 

makeup. She did not like the voice telling her what to do or the alarm buzzing when she closed 

her eyes. More importantly, according to her testimony, the voice and alarm scared her to the 

extent she felt that she could no longer operate haul trucks in a safe manner. “[M]ining is not the 

most comfortable of professions.” Price, 12 FMSHRC at 1515. Safety equipment is often 

uncomfortable and inconvenient. Myers may simply not be well suited to being a haul truck 

driver. Although at least a few of the other drivers did not particularly care for the DSS system, 

especially when it was first installed, there has been no showing that the system created a 

significant safety hazard at the mine. Indeed, the evidence establishes that haul truck accidents 

decreased after the installation of the DSS system. I credit that evidence. 

It is significant that Myers never sought accommodation for any of her alleged 

disabilities, including her PTSD and her hypohydrosis. At the hearing, Myers stated that this 

information was in her medical files in HR and implied that Freeport should have known of her 

need for accommodation. I find, however, that Myers did not take any steps to seek an 

34 FMSHRC Page 1606
accommodation for these alleged conditions.9 The procedure for bidding for other positions was 

explained to Ms. Myers by HR. “The Commission does not sit as a super grievance board to 

judge the industrial merits, fairness, reasonableness, or wisdom of an operator’s employment 

policies except insofar as those policies may conflict with rights granted under section 105(c) of 

the Mine Act.” Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (internal 

citations omitted). I find that her complaints were either not related to safety and health or that 

they were not communicated to mine management as safety concerns. As stated above, Freeport 

was not aware that the incident with the crawler created a safety hazard that needed to be 

investigated. 

Given the above, I find that Myers did not establish that she engaged in activity that is 

protected by the Mine Act. Her complaints were of a personal nature and she did not 

communicate any specific safety complaints to management. Because Myers represented herself 

in this case, however, I will assume for purposes of discussion and resolving this case that at 

least some of the complaints Myers lodged about the DSS machine related directly or indirectly 

to her personal safety. At the hearing, she appeared to be a person that has a difficult time 

articulating her concerns. 

B. Adverse Action 

1. General Considerations. 

Establishing a connection between the protected activity and the adverse actions is often 

difficult to establish. “Direct evidence of motivation is rarely encountered; more typically, the 

only available evidence is indirect . . . ‘intent is subjective and in many cases the discrimination 

can be proven only by use of circumstantial evidence.’” Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F. 2d 86 

(D.C. Cir 1983). In evaluating whether a complainant has established a causal connection 

between protected activities and adverse actions, the following factors are generally considered: 

(1) knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3) 

coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment. Id. 

There was certainly a coincidence in time between the protected activity and the adverse 

action. Although Myers alleged, in a general way, that other drivers were treated differently than 

she was after she started raising questions about the DSS devices, the evidence was insufficient 

to establish disparate treatment. Other haul truck drivers had been disciplined for tampering 

9

 I note that the medical records that Myers relied on at the hearing are mostly the notes 

taken by her physician as Myers described how she was feeling. (Ex. C-12, p. PTSD2). There 

was no diagnosis of PTSD, for example. Myers described her traumatic personal life to the 

physician and expressed her belief that she suffered from PTSD and the physician prescribed an 

antidepressant and recommended counseling. (Tr. 159-61; Ex. C-12). 

34 FMSHRC Page 1607
with the DSS devices. (Ex. R-5 p. 17, R-48). As discussed herein, I credit the testimony of 

Freeport’s witnesses that Myers was not singled out for discipline because she complained about 

the DSS machines. 

Freeport certainly had knowledge that Myers did not like the DSS devices, that she 

considered them to be a nuisance, and that she considered them unsafe because of the number of 

false-positive fatigue alarms. Her complaints were of a general nature, she said that the DSS 

fatigue alarms scared her and that the distraction event voice commands were distracting to her. 

Freeport did not have any knowledge that Myers believed she almost had an accident with the 

crawler because the voice that said “keep eyes on path” distracted her. Freeport observed that 

she was having difficulty adjusting to the DSS system and its managers attempted to show her 

that the system was a safety device meant to prevent accidents. Freeport considered the DSS 

system to be a safety device that all haul truck drivers would need to adjust to. It did not 

consider her complaints to be protected activity. 

I find that Freeport did not display hostility or animus toward any demonstrated protected 

activity, but it did display hostility toward what it considered to be her testing of the DSS. As 

discussed below, the evidence establishes that Myers frequently closed her eyes for periods of 

time that were significantly longer than ordinary blinking. The DSS camera only sends an email 

to the tower with a video and photos if the eyes remain closed for at least two and a half seconds. 

On the night of February 14, Myers had her eyes closed for long enough periods to send an email 

at least eight times. The objective evidence establishes that she was either closing her eyes on 

purpose or she was falling asleep. Because she denied to management that she was falling asleep 

and she told them that she was testing the machine, Freeport disciplined her. Such discipline did 

not establish animosity toward any protected activity. 

2. Specific Allegations 

The first adverse action Myers mentioned concerned harassment by Ms. Propes. I credit 

the testimony of Propes that she did not single out Myers or try to harass Myers for any reason. 

Myers testimony that she was harassed by Propes and others by transporting her to her truck late, 

sparing out her truck, and putting her on haul trucks that had some mechanical problem was not 

very convincing. All trucks were shut down from time-to-time for production reasons. It was 

her responsibility to make sure that she got on the correct van to take her to her haulage truck by 

the most direct route. Freeport investigated this alleged harassment when Myers called the 

Freeport hotline. (Ex. R-6). She did not mention the DSS in her hotline complaint. (Tr. 199; 

Ex. R-6). There is also no showing that any adverse action was related in any way to her lower 

evaluation for production. 

On October 10, 2010, Myers was asked to come to the tower so that she could be shown 

photos of herself with her eyes closed. The DSS registered quite a few microsleep events during 

her shift that day. Propes signed a statement that evening in which she stated that Myers told her 

during this meeting that she was not tired and that the DSS was not working correctly. Propes 

testified that Myers told her that she was “testing the machine.” (Exs. C-9, R-30). Propes 

34 FMSHRC Page 1608
advised Myers that she should not test the machine because it is there for her safety. I credit the 

testimony of Propes on these events. 

On October 27, 2010, the DSS in Myers’ truck was not working properly because it 

appeared that the camera had been obscured. Hiler called her to the tower where Myers 

explained that paper towels must have rolled in front of the camera. Hiler explained that the 

DSS is a safety device, that she must keep the camera free of obstructions, and that employees 

can be disciplined for tampering with the DSS including the camera. (Ex. R-29). She was not 

disciplined for this event. Myers believes that she was given this warning to create a paper trail 

so that she could be disciplined for complaining about the DSS. 

On February 14, 2011, Myers was suspended from work with pay because management 

believed that she was closing her eyes on purpose while driving her truck. Lundeen testified that 

Myers told him that she made the DSS alarm activate. There is a dispute as to what she meant 

by that statement. Myers argues that all she meant was that her normal work activities made the 

alarm sound. Freeport management believed that Myers was continuing to “test” the machine. 

(Exs. R-16, C-15). In her written statement, Myers stated: “I tested the system myself to see 

how it works.” Id. In a separate paragraph she wrote: “Conclusion – the system does go off 

when you close your eyes and are not sleeping.” Id. At the hearing, Myers testified that these 

two statements are not related and that is why she put them in separate paragraphs. (Tr. 109-14). 

She testified that whenever she closed her eyes, the alarm went off. 

I recognize that people do close their eyes from time to time, and apparently when she 

did, the fatigue alarm would sound at least some of the time. Nevertheless, management 

reasonably concluded from her oral remarks and written statements that she was also closing her 

eyes on purpose to demonstrate that the alarm would sound when someone was not actually on 

the verge of falling asleep. She would give the thumbs-up sign in the mistaken belief that the 

dispatcher could see it and know that she was okay. Myers was suspended with pay for these 

actions and given a final written counseling. (Tr.114; Ex. C-16). 

Myers protested this discipline and a problem-solving meeting was held on March 10, 

2011, to discuss it. (Ex. R-42). Management explained that Freeport considered her act of 

closing her eyes on purpose to be a safety hazard that amounted to tampering with safety 

equipment. I credit the testimony of Freeport’s witnesses that the company suspended her 

because management believed that she was purposefully closing her eyes to activate the DSS 

alarm. Freeport did not reduce the discipline following this meeting. 

Her next suspension occurred after she had a flat tire on April 20, 2011. However, this 

was a suspension with pay pending an investigation. She returned to work without being 

disciplined for the flat tire. 

On May 4, 2011, Myers suffered a pain in her neck. She attributes the pain to lifting her 

backpack out of her vehicle. She did tell the EMT, however, that her truck had been roughly 

loaded a few days earlier. She was suspended with pay pending an investigation because rough 

34 FMSHRC Page 1609
 

loading events are required to be reported. Myers was allowed to return to work without any 

disciplinary action being taken.10 

Myers filed her discrimination complaint with MSHA on or about May 4, 2011. She was 

interviewed by MSHA Special Investigator David B. Funkhouser on May 24. She advised 

Funkhouser that she wanted all of her previous discipline removed from her records and all of 

the DSS machines removed from the haul trucks at the mine. (Ex. R-2). Myers described the 

DSS system to Funkhouser, complained that the alarm is frequently triggered when she is not 

falling asleep, and she attributed her discipline to her complaints about the DSS. She told the 

investigator that she is the miner who phoned in the complaint to MSHA about the DSS 

machines being unsafe. Id. By letter dated June 16, 2011, MSHA determined that no 

discrimination took place. 

MSHA did not consider the events of June 2011 that resulted in her termination when it 

investigated her discrimination complaint. Myers testified that she called Inspector Funkhouser 

to keep him up-to-date on the events that transpired after the May 24 interview including her 

termination. (Tr. 133-35). It does not appear that MSHA did any further investigation into her 

discrimination complaint. Myers did not file an amended complaint of discrimination with 

MSHA following her termination. 

Freeport argues that the Commission does not have jurisdiction to consider the issue of 

her termination because MSHA never investigated the events surrounding her termination. The 

scope of MSHA’s investigation establishes the extent of my jurisdiction in this case. Hatfield v. 

Colquest Energy, 13 FMSHRC 544 (April 1991); Pontiki Coal Co., 19 FMSHRC 1009, 1017 

(June 1997). It is clear that Myers did not file an amended complaint with MSHA and MSHA 

did not conduct an investigation based on her subsequent phone calls to Funkhouser. Thus, I do 

not have jurisdiction to order relief based on the events that occurred after MSHA’s 

investigation. 

I find that Myers did not establish that she was disciplined because of any safety 

concerns she may have expressed about the DSS. Instead, the discipline was given for the 

reasons described by Freeport. The only discipline involving the DSS was for her admitted act 

10 Because she had been given a final written counseling on February 23, 2011, for the 

events of February 15, all subsequent events involving Myers were more thoroughly investigated 

than they would otherwise have been. She was given a final written counseling because Freeport 

considered her continued testing of the DSS to be a serious safety violation. Freeport’s 

progressive discipline policy provides that an employee may be immediately discharged for 

“failure to follow safe procedures while operating heavy equipment, and inappropriate removal, 

alteration, or bypass of a safety guard.” (Ex. R-5, p. 17). She was suspended with pay during 

the two investigations described above, but she was not otherwise disciplined. Ulibarri testified 

that this practice was standard procedure at the mine. (Tr. 426-27). I credit Ulibarri’s testimony 

on this issue. 

34 FMSHRC Page 1610
of testing the system. In reaching this conclusion, I assume that the DSS alarm produced some 

false-positives for Ms. Myers because she was closing her eyes for more than 2.5 seconds at a 

time. I assume that when she closed her eyes, whether she was in danger of falling asleep or not, 

the DSS would often set off an alarm. I credit the testimony of Fohr that someone may be 

entering a microsleep without realizing it. This fact is significant because, in many instances, 

Myers may have been entering a microsleep condition without realizing it. In the instances that 

occurred during her night shift February 14-15, 2011, her eyes were closed for 2.5 seconds or 

longer, in some instances her eyes were closed for more than 3.5 seconds, and one instance her 

eyes were closed for 4.5 seconds. (Ex. R-33). The DSS is designed to keep drivers awake and, 

in performing this function, it is likely to be irradiating to the driver if he or she is sleepy. I 

credit the testimony of Freeport’s witnesses that the alarm and the computer voice were not so 

loud that it should unnecessarily scare someone. I note, however, if a driver is beginning to fall 

asleep at 1:00 a.m. and the alarm goes off, it may well be jarring to the driver because it is 

waking him up. There was no showing that being awakened or startled by the DSS fatigue alarm 

or the distraction command voice creates a safety hazard. Falling asleep while driving a haul 

truck certainly creates a significant safety hazard.11 

III. ORDER 

For the reasons set forth above, it is hereby ORDERED that Complainant’s 

discrimination claim be DISMISSED. 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

11 If I were to assume that MSHA had investigated Myers’ termination and reached the 

conclusion that there was no violation of section 105(c) of the Mine Act and I were to assume 

that her termination was properly before me under section 105(c)(3) of the Mine Act, based on 

the record developed at the hearing, I would find that Myers did not establish that her 

termination violated section 105(c). My reasoning would be the same as set forth in this 

decision with respect to the other discipline that she received. 

34 FMSHRC Page 1611
Distribution: 

Tiffany Myers, 2816 W. Quail Drive, Fayetteville, AR 72704-5364
 

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly, 1099 18th Street, Suite
 

2150, Denver, CO 80202-1958
 

RWM 

34 FMSHRC Page 1612
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

July 10, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA),

Petitioner

 :

 :

 Docket No. VA 2008-215 

A.C. No. 44-06804-141359A 

v. :

 : 

ERNEST B. MATNEY, Employed by

 KNOX CREEK COAL CORP.,

Respondent

 :

 : 

: 

Tiller No. 1

DECISION ON REMAND
 

GRANTING THE SECRETARY’S MOTION 

TO APPROVE SETTLEMENT
 

Appearances: Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, 

for the Respondent. 

Before: Judge Feldman 

The initial decision in this matter determined that Ernest Matney (“Matney”), as an agent 

of Knox Creek Coal Corporation (“Knox Creek”), was not personally liable under section 110(c) 

of the Mine Act, 30 U.S.C. § 820(c),1

 for failing to conduct an adequate preshift examination in 

violation of 30 C.F.R. § 75.360(a)(1), and failing to protect personnel from roof and/or rib falls 

1

 Section 110(c) of the Mine Act provides: 

Whenever a corporate operator violates a mandatory health or safety standard or knowingly 

violates or fails or refuses to comply with any order issued under [this Act] or any order 

incorporated in a final decision issued under [this Act], except an order incorporated in a 

decision issued under subsection (a) ... or section 105(c) ... , any director, officer, or agent of 

such corporation who knowingly authorized, ordered, or carried out such violation, failure, or 

refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed 

upon a person under subsections (a) and (d). 

34 FMSHRC Page 1613
in violation of 30 C.F.R. § 75.202(a).2 31 FMSHRC 1422, 1424, 1438 (Dec. 2009) (ALJ). 

On April 25, 2012, the Commission reversed the initial determination that Matney was not liable 

under section 110(c) for knowingly authorizing Knox Creek’s violations and remanded for the 

assessment of a civil penalty. 34 FMSHRC __ (Apr. 2012), slip op. at 11. The Commission 

found that Matney was personally liable for failing to address hazardous roof conditions that 

were readily apparent. Id. However, the Commission did not disturb the initial finding that the 

Secretary failed to demonstrate, by a preponderance of the evidence, that Matney knew, or 

should have known, that a crib had been built and then dismantled under a sheared roof bolt. 

Slip op. at 8, fn. 9. The Secretary initially proposed a civil penalty of $2,700.00 against Matney 

for the two subject violations. 

The Secretary now has filed a motion for the approval of settlement. Matney has agreed 

to pay a total reduced civil penalty of $2,160.00 in satisfaction of the cited violations. The 

reduction in penalty is based on Matney’s inability to pay the civil penalty initially proposed 

because he is currently a recipient of Social Security disability payments. 

I have considered the representations submitted in this matter and I conclude that the 

proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act, with 

particular emphasis on the ability to pay criterion. 30 U.S.C. § 820(i). WHEREFORE, the 

Secretary’s motion to approve settlement IS GRANTED. Pursuant to the parties’ agreement, 

Ernest Matney IS ORDERED to pay the $2,160.00 civil penalty within 40 days of this order in 

satisfaction of the two violations at issue.3

 Upon receipt of timely payment, the captioned civil 

penalty matter IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

2 104(d)(1) Citation No. 7317341 and 104(d)(1) Order 7317342 were issued to 

Knox Creek for failure to conduct an adequate preshift examination, and for failing to protect 

personnel from unsafe roof conditions, respectively. The initial decision affirmed the 

104(d)(1) Citation and Order against Knox Creek and was not appealed. 

3

 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please 

include the Docket No. and A.C. No. noted in the above caption on the check. 

34 FMSHRC Page 1614
Distribution: (Certified Mail) 

Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor,
 

1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247
 

Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, 208 E. Main Street,
 

P.O. 2288, Abingdon, VA 24212
 

/jel
 

34 FMSHRC Page 1615
 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

Office of Administrative Law Judges 

721 19th St., Suite 443
 

Denver, CO 80202-2500
 

Office: (303) 844-5266/Fax: (303) 844-5268
 

July 11, 2012 

JEFF SCOTT, : DISCRIMINATION PROCEEDING 

 Complainant, : 

: Docket No. WEST 2012-79-DM 

: WE MD 11-05 

 v. : 

: Docket No. WEST 2011-269-DM 

: WE MD 10-17 

: 

NEWMONT USA LIMITED, : Mine: Gold Quarry - South Area 

Respondent. : Mine ID 26-00500 

Appearances: Andrew L. Rempfer, Larson Welsh, Las Vegas, Nevada on behalf of the 

Complainant, Jeff Scott; 

Laura Beverage, Karen Johnston, Robin Repass, Jackson Kelly, PLLC, Denver, 

Colorado, on behalf of the Respondent. 

Before: Judge Miller 

DECISION 

This case is before me on a Complaint of Discrimination brought by Jeff Scott against 

Newmont USA Limited, pursuant to section 105(c) of the Federal Mine Safety and Health Act of 

1977, as amended, 30 U.S.C. § 815(c). The parties presented testimony and documentary 

evidence at a hearing commencing on April 11, 2012 in Salt Lake City, Utah. 

I. BACKGROUND 

Newmont USA Limited (“Newmont”), the Respondent, operates the Gold Quarry Mine 

(the “mine”) near Elko, Nevada. Jt. Stip. 1,2. Newmont hired the Complainant, Jeff Scott, as a 

haul truck driver on September 25, 2006. Scott’s last position prior to termination was equivalent 

to a “Technician 3” as listed in the Operating Engineers Local Union No. 3 agreement. Jt. Stip. 5. 

Scott worked as a haul truck driver until the time Newmont discharged him from employment at 

the mine on October 21, 2010. Scott filed his first discrimination complaint with MSHA, MSHA 

Case No. WE-MD 10-17, (Docket No. West 2011-269-DM) on March 3, 2010 while still 

employed by Newmont. He filed a second complaint of discrimination in September, 2010, also 

while still employed by Newmont. Subsequently, Newmont discharged Scott, after which he 

filed a third discrimination complaint with MSHA, MSHA Case No. WE-MD 11-05, alleging 

34 FMSHRC Page 1616
that he was terminated for engaging in activity protected under the Act, pursuant to 105(c)(2) of 

the Act, 30 U.S.C. § 815(c)(2). The third complaint, filed in February, 2011, Docket No. West 

2012-79-DM was the subject of a temporary reinstatement request. Scott was granted economic 

reinstatement in March, 2011 in Docket West 2011-739-DM. Scott seeks back pay in the amount 

of $36,505.00 for the time he was unemployed from October to the time he was temporarily 

reinstated. Newmont has agreed to the amount of back pay owed as a result of the termination. 

All three discrimination complaints are the subject of this decision. 

The parties have agreed upon the following stipulations: 

1.	 Respondent is an operator within the meaning of the Federal Mine Safety and Health Act 

of 1977 (the “Mine Act”), 30 U.S.C. §§ 801 et seq. 

2.	 Newmont USA Limited; South Area Mine, Mine I.D. No. 26-00500, is subject to the 

jurisdiction of the Mine Act. 

3.	 At all times relevant to this proceeding, Complainant, Jeff Scott, was a “miner” within 

the meaning of §§ 3(g) and 105(c) of the Mine Act, 30 U.S.C. §§ 802(g) and 815(c). 

4.	 The Administrative Law Judge has jurisdiction in this matter to decide claims alleging 

protected activity under the Mine Act, pursuant to § 105(c)(3) of the Mine Act. 

5.	 Jeff Scott began working at Newmont on September 25, 2006, as a haul truck traineeoperator at the South Area Mine. Scott was eventually promoted to a haul truck driver. 

Scott’s last position was equivalent to a “Technician 3,” entitled as of the 2010-2013 

Collective Bargaining Agreement, Appendix A, of $25.54 per hour, plus all other health, 

life, dental, perquisites and other benefits available to Technician 3-Level employees, in 

Year 1 of the Agreement. 

6.	 Scott was a member of Operating Engineers Local Union No. 3. 

7.	 Newmont and Local No. 3 are parties to a “Collective Bargaining Agreement.” The 

parties hereby stipulate the CBA for the years 2010-2013 shall apply to this dispute. 

8.	 Newmont has a progressive disciplinary policy. 

9.	 On October 23, 2009, Scott submitted a “Talking Safety Feedback #468.” Suggesting 

Newmont institute a “zero tolerance policy for operating equipment with coolant leaks.” 

Newmont approved this Talking Safety Suggestion. 

10.	 On November 13, 2009, Scott submitted “Talking Safety Feedback #515” and suggested 

“[Newmont] ensure that we have an effective solution to cleaning the dust out of 789 

haul truck cabs. I recommend Shop Vacs (1 Gallon Size), Inverters and Hepa Filters.” 

Newmont approved this Talking Safety Suggestion. 

11.	 On November 14, 2009, Scott submitted a “Talking Safety” suggesting a change from the 

“after-market convex blind-side mirrors with the flat, glass mirrors that the trucks 

originally came with . . .” Newmont approved this Talking Safety Suggestion. 

12.	 On January 18, 2010, Scott received a “written warning for excessive absenteeism.” Scott 

previously received a written warning for being AWOL on February 8, 2007, and a 

recorded verbal warning for excessive absenteeism on July 16, 2008. 

13.	 On February 17, 2010, Scott witnessed the Operator of a Hitachi Hydraulic Excavator 

(“Shovel”) strike the bed of a haul truck driver’s truck with the shovel bucket one time. 

14.	 Regarding the incident referenced in paragraph 13, above, the parties stipulate Scott 

reported this incident to his Shift Foreman, Randy Hutsell. Scott was issued a written 

34 FMSHRC Page 1617
warning for using his cellular phone to report the incident. That written warning was later 

removed from Scott’s file after further investigation into the matter. 

15.	 On February 17, 2010, Scott was reassigned to the South Area. 

16.	 On or about March 3, 2010, Jeff Scott filed a discrimination complaint with MSHA 

pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 10-06. 

17.	 On March 9, 2010, Scott was seen by Shift Foreman Todd Fowers failing to yield his 

haul truck to Fowers’ light vehicle on two separate occasions. 

18.	 On March 10, 2010, Scott received a “written warning” for (allegedly) “fail[ing] to yield 

to posted yield signs on two separate occasions during the shift, creating an unsafe 

working environment for others working in the area 

19.	 On March 15, 2010, Scott had a private meeting with Todd Fowers. During this meeting, 

Scott requested the following day off, March 16, 2010, so he could meet with the MSHA 

special investigator. 

20.	 On March 23, 2010, Scott nominated Fowers for an employee recognition award for 

turning the negative reinforcement of discipline (referenced in paragraph 19 above) into a 

positive event, by putting safety ahead of production. As a result, Fowers received a $100 

Spot Recognition Award. 

21.	 On June 8, 2010, Scott submitted “Talking Safety Feedback #648” and suggested 

“placing a computer with the necessary controls in the time shack line-out room. When 

operators are waiting for equipment they could utilize the computers to look-up STPs, 

SOPs, and training clips from our training department and from Caterpillar.” Newmont 

denied this Talking Safety Suggestion and opted for placement of hard copies of STPs in 

the line-out rooms. 

22.	 On June 30, 2010, Scott received a write up for “inadequate job performance,” which 

included a one-day disciplinary layoff for (allegedly) parking his truck too close to a 

shovel, which caused the shovel to strike Scott’s truck. Both parties concede the shovel 

hit Scott’s truck. 

23.	 On July 1, 2010, Scott submitted a “Talking Safety Feedback #679” suggesting Newmont 

make the “12 volt charger/cigarette lighter components a higher priority to fix on all our 

equipment” for emergency-related purposes. Newmont approved this Talking Safety 

Suggestion. 

24.	 On July 1, 2010, Scott submitted a “Talking Safety Feedback #680” suggesting Newmont 

“get some kind of dust suppression for the South Area Gyro. The Gyro is so old and has 

been hit so many times that is seems nearly impossible that it could be sealed. There are 

times when dumping a dry load of material into the Gyro after which you cannot even see 

the Gyro through the cloud of dust. This cannot be good for the Gyro operator; with the 

increasing clarity of ubiquitous internet satellite image services, it will eventually harm 

the company as well.” Newmont approved this Talking Safety Suggestion. 

25.	 On August 25, 2010, Scott submitted a “Talking Safety Feedback #735” seeking a 

“computer in mine ops line-out room that is completely offline (not even connected to the 

intranet) for training videos, SOPs [and] other relevant to safe, efficient production. 

[Scott] demonstrated a training video [he] downloaded from cat.com at the last training 

safety mtg. [he] attended and was told to file another suggestion. I volunteer to load 

content (approved by mgmt.) [and] maintain this computer . . . on my own if necessary.” 

Newmont approved this Talking Safety Suggestion. 

34 FMSHRC Page 1618
26.	 On August 25, 2010, Scott submitted a “Talking Safety Feedback #736” requesting 

“[Newmont] set a minimum width for the roads we drive haul trucks on . . . [and] for 

narrow spots we can’t fix could we place appropriate signage [and] make sure we have 

enough support equipment [and] gravel during the winter months.” Newmont approved 

this Talking Safety Suggestion. 

27.	 On August 25, 2010, Scott submitted a “Talking Safety Feedback #737” suggesting 

“[Newmont] post a list of equipment failures/conditions in mine control that would 

require a piece of equipment to be automatically downed . . . we need a list, readily 

available to mine control that is written in stone so these situations don’t erode into 

common practice.” Newmont approved this Talking Safety Suggestion. 

28.	 On August 31, 2010, Scott reported to Newmont employees were allegedly verbally 

harassed and subject to a hostile work environment. 

29.	 On August 31, 2010, MSHA determined that no discrimination occurred under § 105(c) 

of the Mine Act as alleged in MSHA Case No. WE-MD 10-06. 

30.	 On September 8, 2010, Jeff Scott filed a discrimination complaint with MSHA pursuant 

to § 105(c) of the Mine Act, MSHA Case No. WE-MD 10-17. 

31.	 On October 15, 2010, Scott met with Dave Sirotek and Todd Fowers to discuss alleged 

incidents regarding Scott’s work performance. Scott was then suspended pending 

investigation into his performance. Fowers testified he had already prepared a written 

disciplinary warning for Scott that day. 

32.	 Jeff Scott was terminated from the position of haul truck operator at Newmont, effective 

October 21, 2010. 

33.	 On or about November 8, 2010, MSHA determined that no discrimination occurred under 

§ 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 10-17. 

34.	 On or about February 11, 2011, Jeff Scott filed a discrimination complaint with MSHA 

pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 11-05. 

35.	 On or about September 13, 2011, MSHA determined that no discrimination occurred 

under § 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 11-05. 

36.	 On or about September 16, 2011, Jeff Scott filed a discrimination complaint with MSHA 

pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 11-21. 

37.	 On or about December 2, 2011, MSHA determined that no discrimination occurred under 

§ 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 11-21. 

38. Jeff Scott did not request reimbursement for any MSHA-related or mine rescue-related 

training during the period of his temporary reinstatement. 

II. FINDINGS OF FACT 

The findings of fact are based on the record as a whole and my careful observation of the 

witnesses during their testimony. In resolving any conflicts in testimony, I have taken into 

consideration the interests of the witnesses, corroboration, or lack thereof, and consistencies or 

inconsistencies, in each witness= testimony and between the testimonies of witnesses. In 

evaluating the testimony of each witness, I have relied on his or her demeanor. Any failure to 

provide detail on each witness=s testimony is not to be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not 

34 FMSHRC Page 1619
considered. See Craig v. Apfel, 212 F.3d 433,436 (8th Cir. 2000) (administrative law judge is 

not required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). 

Mr. Scott and Newmont’s witnesses testified at length regarding the events leading up to 

Scott’s termination. The critical events discussed at hearing are summarized below in 

chronological order. 

August 2009 – November 2009 

Scott testified that he sent an MSHA fatalgram regarding highwall conditions to 

Newmont mine superintendent Randy Walund on August 17, 2009. (Tr. 23). The following day, 

on August 18, Scott had an angry exchange of words with Wade Stark, the shovel operator, over 

the radio. During cross-examination, Scott testified that Stark had called him an “idiot” because 

he backed his truck up after being parked at the loader and Scott responded by calling Stark a 

“moron.” (Tr. 123-124). Soon thereafter, Wade struck Scott’s truck with the shovel. (Tr. 25, 

124). Scott raised the issue with his supervisor and refused to work with Stark the following day. 

When Scott was assigned to load with Stark, he felt it unsafe and, therefore, without seeking 

permission, changed his work assignment and loaded with another shovel operator. (Tr. 34). 

Subsequently, Scott received a written reprimand from his supervisor, Hutsell, in August, 2009. 

(Tr. 360). Scott believed that little, if anything, was done to investigate the incident involving 

Stark and so he sent emails to various Newmont management personnel expressing his concern. 

(Tr. 40-41). Scott had a meeting with his supervisor and others at the time the reprimand was 

issued and was warned not to go outside of his chain of command when seeking action. (Tr. 44). 

On cross-examination, Scott agreed that he was not aware of any other worker at the mine who 

had a problem with Stark or if Stark had been disciplined as a result of the incident. (Tr. 125). 

In October, 2009, and twice in November, 2009, Scott submitted “Talking Safety” 

feedback forms to the safety committee. All three were accepted by the mine. “Talking Safety” is 

an employee operated program at Newmont, in place since 2008, which affords miners the 

opportunity to present safety suggestions to the mine. Miners submit a “Talking Safety” form to 

the safety committee for review and recommendation. Normally the forms are not passed 

through a foreman or supervisor, but supervisors do have the authority to view the submitted 

forms. Many suggestions are made each month by any number of employees and, for the most 

part, are kept confidential. Throughout his career, Scott submitted many suggestions, many of 

which were implemented at the mine. 

February 2010 

On Feb 17, 2010, Scott, via cell phone, reported hazardous machinery operation by 

fellow employees to a mine supervisor. (Tr. 63). Scott had observed Stark hit a haul truck driven 

by Paul Linenger with the shovel that Stark was operating. (Tr. 62). Linenger did not find Stark 

to be at fault and made his own report about the incident. (Tr. 392). He did not see a reason for 

Scott’s involvement. 

34 FMSHRC Page 1620
 Scott stated that immediately following this report, he was written up by his supervisor 

for violating the mine’s cell phone policy. The write up was subsequently removed from his file 

and, at about the same time, Scott was transferred to the South Area of the mine and provided 

with a new supervisor, Todd Fowers. (Tr. 65). Fowers recalls that he told Scott several weeks 

before the move to the South Area, that Scott was being reassigned. Fowers documented that 

conversation along with Scott’s comment that Scott had a “bias” toward Stark. (Tr.342). Fowers 

understood that Scott believed Stark to be violent and in need of counseling, but Fowers received 

no other complaints about Stark. Fowers explained that Scott was transferred to the South Area, 

as many miners have been, because that area is the larger section and it was in need of EMTs. 

As a result of the move, Scott lost no pay, worked the same shift, experienced no change in 

status, but was placed under the supervision of Fowers. 

Scott stated that he suffered emotional distress as a result of the discipline he received for 

using his cell phone and, because of such; he called in sick to work on February 18th. (Tr.71). 

Newmont issued disciplinary notices to him for the unexcused absence on Feb 18th. (Tr.72). 

These incidents formed the basis of Scott’s initial complaint to MSHA, filed as MSHA Case No. 

WE-MD 10-17. (Tr.67). Scott argued that he did not violate the cell phone policy and eventually, 

the reprimand was removed from his file. (Tr.77). Moreover, in Scott’s view, the unexcused 

absence notice was not appropriate since he had called in as required, and left a message that he 

was not able to sleep and wasn’t feeling well. (Tr.71, 91). When questioned by his supervisor, 

Scott failed to mention that he was suffering from stress and that he had received treatment 

through the Newmont employee assistance program. (Tr.152). Much later, Scott provided 

information regarding his stress, depression and anxiety when he sought and was granted leave 

pursuant to the Family Medical Leave Act. (Tr.153). 

Neither reprimand was used as a basis for Scott’s termination, but Scott suggested that 

the process of permanently removing him from his position began with these actions. Scott 

testified that Newmont’s progressive discipline policy was used, in his view, as a tool to 

systematically remove an employee who was not wanted at the mine. (Tr. 90). 

March 2010 

Scott received the next disciplinary action for failure to yield to another vehicle on March 

10, 2010. (Tr. 80). On two occasions during his shift, Scott observed Fowers in a pickup truck 

come to an intersection as Scott was approaching in a haul truck. (Tr. 78-79). On the first 

occasion, Scott saw that Fowers stopped, so Scott drove through, believing that haul trucks had 

the right of way in all instances. (Tr. 80). However, a few hours later, as Scott approached the 

yield sign, he described that he did not see the pickup until it was too late to stop and, again, he 

was under the impression that the company policy was that haul trucks, as large equipment, had 

the right of way. (Tr. 79-80). 

Fowers’ testified that Scott’s truck was traveling too fast and, in Fowers’ view, the driver 

should be driving in such a manner that he can stop if necessary. Fowers contacted the driver 

after observing him fail to yield at the sign in the first instance. He was not aware that Scott was 

the driver until he made contact through use of the number of the truck. (Tr. 346). Fowers 

34 FMSHRC Page 1621
instructed Scott to yield at the signs as posted and believed this communication was understood 

by Scott. (Tr. 346). However, later in the shift, as Fowers drove out to evaluate the road 

conditions after it began to snow, he again observed Scott fail to yield at a sign. Scott asserts that 

the roads were wet and slick, making it difficult for him to stop. However, Fowers remembers 

that his purpose was to check road conditions, and he did not find them to be wet and slick at the 

time he observed Scott disregard the yield sign for the second time. (Tr. 349). The second time 

Fowers observed the activity, he again told Scott on the radio to follow the signs and yield as 

required. (Tr. 348). 

Haul truck operator Paul Linenger testified that, as a haul truck driver, he understands 

that he must yield to oncoming traffic if there is a posted sign. (Tr. 396). If there is no sign, he 

explained, then the haul truck has the right of way. 

The incident at the yield sign occurred during the night shift on March 10, 2010. On 

March 15, Scott approached Fowers to ask for the following day off so that he could meet with 

an MSHA investigator. (Tr. 257-258). There is some dispute as to what was said, but Fowers 

remembers that he told Scott he could have the day off. Scott recalls that Fowers was not happy 

about Scott’s impending meeting. On March 18, 2010, when Scott returned to work, he was 

issued a disciplinary action for failing to yield at the posted sign. (Tr. 80); Resp. Ex. L. Fowers 

asserts that he intended to issue the reprimand prior to Scott seeking a day off to speak with an 

MSHA investigator. 

On March 23, 2010, Scott nominated Fowers for an employee recognition award for 

turning the negative reinforcement of discipline into a positive event, by putting safety ahead of 

production. As a result, Fowers received a $100 Spot Recognition Award. Jt. Stip. 20. 

June 2010 

On June 8, 2010, Scott suggested, through the “Talking Safety” program, that a computer 

be added to the shack line-out room, but the suggestion was denied. On June 19, 2010 Scott 

parked his haul truck at an angle to the shovel operated by Ken Schultz. He thought he might be 

close but Schultz did not ask him to move. (Tr. 93). Scott stated that once he was nearly loaded, 

the shovel counterweight grazed his truck, resulting in minor damage to both the shovel and 

truck. (Tr. 94). As a result, Newmont issued Scott a reprimand for parking too close to the 

shovel. (Tr. 96). Scott believed that he did not park too close and that the contact resulted from 

the shovel sliding toward him during the loading operation. (Tr. 97). During cross examination 

Scott confirmed that, after the contact, he said something over the radio to the effect of “I just hit 

a big orange thing” and chuckled. (Tr. 167-168). 

Kent Schultz, a Newmont shovel operator, credibly testified that he observed Scott back a 

little too close to the shovel but, at least initially, he believed he could safely load Scott’s truck. 

(Tr. 414). Schultz stated that his shovel was not “ratholed” as alleged by Scott, and there was no 

reason for Scott to have positioned the truck the way he did. Schultz explained the contact by 

stating that Scott’s truck had settled at an angle due to its position and had leaned over into the 

shovel’s swing radius. (Tr. 414). Schultz testified that, after being loaded, Scott contacted him on 

the radio and told him that he “got too close to [the] shovel and . . . had made contact.” (Tr. 419). 

34 FMSHRC Page 1622
Schultz testified that he has never known the several million pound shovel to slide as Scott 

claimed. (Tr. 420). 

Newmont HR officer Mike Woodland investigated the truck/shovel contact incident and 

upheld the reprimand based in part on a determination made by the safety department. (Tr. 461). 

Woodland also explained that, during the course of his investigation, an equipment 

manufacturer’s representative informed him that it was rare for a shovel of that size to slide. (Tr. 

464). Newmont foreman Tim Wright also testified that he heard Scott on the radio after the 

contact say “I was too close to the shovel and I just got you.” (Tr. 570). On June 20, 2010, Scott 

was given one day off as discipline for the incident. 

July 2010 

On July 1, 2010, Scott submitted another “Talking Safety” suggestion about repairing the 

chargers in the haul trucks. The suggestion was approved. 

August/September 2010 

On August 25, 2010, Scott presented three separate “Talking Safety” suggestions to the 

mine. The first one concerned a request for a computer in the line-out shack and the second 

requested setting a minimum width for the haul roads. Both were accepted by the safety 

committee. The third suggestion concerned the need for a list of standard items that would be 

used to determine if a haul truck should be put out of service. The suggestion was also accepted. 

Stips. 25, 26 and 27. On August 16, 2010, Scott sent an email to Mike Woodland in the mine’s 

HR department and mine superintendent Jason Hill, in which he provided information about the 

“Mine Star” system and listed phone numbers that Hill might want to call. (Tr. 647); Resp. Ex. 

LL. Scott also mentioned the incident with the shovel calling it retaliation. Scott mentioned 

Todd Fowers, Hill’s career, and provided information from an HR website. On August 26, 2010, 

Scott sent an email to Hill regarding dust in equipment. Hill forwarded the email to maintenance, 

asking them to check the trucks, and a sent a copy to Fowers, directing him to inform Scott that 

the trucks would be inspected and repaired. Resp. Ex. MM. A more troubling email from Scott to 

Jason Hill and a number of management personnel, including Sirotek and Fowers, Resp. Ex. HH, 

was titled “yesterday’s dog and pony show.” Scott complained that a meeting about the shovel 

incident was stacked against him and that he was not given a fair opportunity to present his 

position. In the two-page email, Scott indicated that he was going to file two grievances with the 

union. He also threatened to contact the higher management in Denver, and work his “way back 

down the ladder.” He told Hill that, after a time, he would file another complaint with MSHA 

and, after that, a complaint with the EEOC if he was not heard and not satisfied with the results 

of his complaints. The tone of the email is one of anger and threats. Hill could not explain why 

Scott continually sent him emails, but he followed up on complaints by forwarding the message 

to the correct person and instructing his supervisors to look into the allegations. (Tr. 648). 

On August 26, 2010, Scott also sent an email to Mike Woodland detailing the hostile 

work environment at the mine. Scott then met with two representatives from HR, Woodland and 

Vasquez. (Tr. 105). They discussed the complaints Scott made, including his accusations about 

being treated unfairly and the retaliation against him, as well as the treatment of another 

34 FMSHRC Page 1623
employee, Phillip Medina. (Tr. 106). Vasquez met with Scott a second time and spent an 

additional three hours with him and then followed up and conducted interviews. (Tr. 106); Scott 

Exs. 25A, 25B and 25C. One subject of Scott’s email, Phillip Medina, was interviewed and 

informed HR that he had already spoken to Fowers and the matter had been resolved. (Tr. 468-

469). As a result of the investigation, Vasquez found no merit to the allegations raised by Scott. 

(Tr. 586). 

October 2010 

The final incidents prior to Newmont’s termination of Scott occurred on October 10, 

2010. Scott explained that, on that date, he parked his truck at 7:06, cleaned it out and quit at 

7:10. (Tr. 359). Although the shift ends at 7:30, miners can begin shutting down at 7:10 in order 

to switch with the oncoming shift. (Tr. 192). Scott testified that he shut down just before 7:10 

because an average haul cycle took over 20 minutes and he did not have time to complete 

another cycle before quitting time. (Tr. 111). 

Fowers testified that, after Scott was warned at the morning safety meeting not to quit 

early, he observed Scott park his haul truck in the line of trucks at the end of the October 10th 

shift. (Tr. 356). On this particular shift, Fowers was in the “Mine Star” office talking to the 

operators when he observed, via camera, two vehicles, and then a third, pull into position to quit 

before 7:10. (Tr. 355). The first two vehicles rolled in shortly after 7:00 and Scott followed a few 

minutes later. (Tr. 355). Fowers got on the radio and told the three equipment operators, 

including the haul truck operator, who turned out to be Scott, to return to work. (Tr. 355-356). 

The two other vehicles who had pulled in ahead of Scott returned to work, but Scott remained 

parked. Fowers continued to call Scott on the radio and, via the camera in the office, could see 

Scott in his truck. However, Scott refused to answer the radio call on each of the three occasions. 

(Tr. 356). Although Scott argues that he was out of his truck and cleaning for the last few 

minutes, Fowers did not observe him get out of the truck and did not observe him engaged in 

cleaning activities. (Tr. 357). 

Tim Wright was in the office with Fowers and supported the description of the incident 

provided by Fowers. Wright repeatedly reminded the crew that they could not quit until after 

7:10 and he made a special point of reminding the drivers at the beginning of that shift on 

October 10th. (Tr. 571). A number of times, Wright has observed truck drivers pull in early and 

he has reminded them to return to work, even if it is for only a few minutes. (Tr. 571). He heard 

Fowers tell the drivers to move on and observed Scott park his truck and ignore the radio calls of 

Fowers. (Tr. 573:12-16). 

On the same date, at the end of the shift, Fowers was approached by Cheney, who was 

visibly upset and who had been working with Scott in the pit that evening. Cheney, a colorful 

witness, asked Fowers to please instruct Scott to cooperate with him when working together in 

the pit. (Tr. 362). Cheney explained that on numerous occasions during the night, he had 

explained to Scott, the correct location for dumping, yet Scott continued to dump in other 

34 FMSHRC Page 1624
 

locations.1 Cheney testified that in his 23 years working at Newmont, he has not complained 

about a haul truck driver, but it was his view that Scott was purposefully dumping in the wrong 

area when Cheney was not looking, thereby making Cheney’s job more difficult. (Tr. 627). 

Linenger confirmed that Cheney was obviously upset after working with Scott based upon his 

radio communication. (Tr. 399). Wright also observed Walter Cheney approach Fowers after the 

shift and confirmed that Chaney was upset. (Tr. 573-574). 

Scott testified that he was dumping at the feed stockpile with Cheney that shift, and that 

he was unfamiliar with the dumping operations at that location. (Tr. 114). According to Scott, 

Cheney, the loader operator, mentioned to Scott near the end of the shift that there had been 

some problems related to where Scott was dumping that night. (Tr. 114). Scott asserts that he 

dumped as he should have that night, he was never warned that there was a problem, and he was 

just “filling in the holes” to accommodate the loader. (Tr. 113). 

Scott explained that, as a result of shutting down before 7:10 and dumping in the wrong 

location, he was called into a due diligence meeting with Newmont management and a union 

representative on October 15, 2010. Stip. 31. Scott asserts that Newmont had determined to 

issue reprimands for dumping in the wrong location and quitting early during the October 10th 

shift prior to questioning him and calling him into the meeting. (Tr. 117). Scott also asserts that 

the disciplinary meeting was called without proper notice. Stip. 31. Scott testified that he had just 

met with the MSHA investigator the day before and, given that the mine had no documentation 

to demonstrate that he had quit early or dumped in the wrong location, there was no point to the 

meeting. (Tr. 117). Scott refused to respond to any allegations made at the meeting and was 

suspended pending investigation. (Tr. 117, 365). It was Scott’s impression that the entire 

meeting was stacked against him. (Tr. 117). 

Scott stated that Newmont terminated his employment on October 21st for the stated 

reasons of dumping in the wrong location, quitting early, and failing to cooperate at the due 

diligence meeting. (Tr. 119). Scott filed a grievance with the union regarding the actions and 

after a meeting with the board of adjustment, consisting of two management persons and two 

union persons, it was determined that Scott would be given the opportunity to resign, instead of 

being fired. (Tr. 181). Scott refused. (Tr. 181). 

Fowers testified at length and agrees that Scott frequently raised issues of safety but he 

asserts that he did not make the decision to terminate Scott. He was, however, involved in 

meetings with the Human Resources Department and mine management about Scott’s situation. 

Mike Woodland worked in the Newmont HR office during the time Scott was issued disciplinary 

actions and he was part of the discussion when the decision was made to terminate Scott. 

Woodland, had reviewed the disciplinary action that Scott received for using his cell phone in 

February, 2010 and determined that Scott did not violate Newmont’s policy as alleged and had 

the action removed from Scott’s file. (Tr. 440). Woodland did agree, however, with Fowers that 

in March, 2010 Scott was correctly warned about not yielding in posted areas. (Tr.445). 

1

 In his statement to MSHA, Chaney said that he did not go speak with Fowers that night, but 

during his testimony, which I find credible, he indicated that he had made an error when 

speaking to the inspector. 

34 FMSHRC Page 1625
Woodland was also present when Scott was asked to explain to Fowers and Sirotek, the mine 

manager, his view of dumping in the wrong place with Cheney and taking his haul truck out of 

service early. A union rep was present, yet Scott became angry and refused to discuss the matter. 

(Tr. 473). Woodland indicated that no one person made a decision to terminate Scott and, 

instead, it was a collective consensus decision by Woodland, David Sirotek, Debbie Paparich, 

the Newmont HR manager for Nevada, Jason Hill, mine superintendent, and Fowers. (Tr. 554-

555). 

Fowers described that he believed Scott to be a problem employee because he was 

constantly going over his head with complaints. (Tr. 579). Fowers was unhappy with Scott for 

sending numerous emails directly to the mine manager and mine supervisor instead of giving 

Fowers the opportunity to address Scott’s concerns. He admitted that Scott’s complaints 

sometimes involved safety issues. If they were justified, Fowers said, they were addressed. (Tr. 

579). 

Jason Hill, the mine superintendent, explained that before taking any action against Scott, 

he carefully examined the entire record to be certain the proper procedures and policy were 

followed. (Tr. 662). Sirotek, the mine manager, agreed that the progressive discipline policy had 

been followed in Scott’s case and confirmed that other employees had been terminated at 

Newmont based upon the same policy. Sirotek, while general manager, followed the discipline 

procedure for Glen Tervort, who was involved in an accident that injured three employees. (Tr. 

678). He was not terminated, but the documents at Scott Ex. 39 show that he was suspended for 

three days by his supervisor, who coincidentally was his uncle. (Tr. 678:). Bobby Martinez had 

several accidents and was terminated through the progressive discipline policy. (Tr. 680). 

Martinez was initially given one day off for equipment damage, then, in November, 2008 after a 

second accident, he was given three days off. Later, in December, Martinez was given five days 

off for hitting a berm, and was subsequently terminated. (Tr. 681). 

III. ANALYSIS 

Section 105(c)(1) of the Act, 30 U.S.C. § 815(c)(1), provides that, a miner cannot be 

discharged, discriminated against, or interfered with in the exercise of his statutory rights 

because: (1) he “has filed or made a complaint under or related to this Act, including a complaint 

... of an alleged danger or safety or health violation;” (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 under or related to this Act or has 

testified or is about to testify in any such proceeding;” or (4) he has exercised “on behalf of 

himself 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 must show: (1) That he engaged in protected activity; and (2) That the 

adverse action he complains of was motivated at least partially 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. 

34 FMSHRC Page 1626
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom 

Consolidation Coal Co. v. Marshall, 663 F.3d 1211 . 

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 manner, it, 

nevertheless, may defend affirmatively by proving that it was also motivated by the miner's 

unprotected 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). 

Factors to be considered in assessing whether a prima facie case exists include the 

operator’s knowledge of the protected activity, hostility or “animus” towards the protected 

activity, timing of the adverse action in relation to the protected activity, and disparate treatment. 

Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508 (Nov. 

1981). 

A. Protected Activities and Adverse Actions 

In order to sustain his discrimination complaint, Scott must first demonstrate that he has 

engaged in an activity or activities that are protected by Section 105(c) of the Mine Act. The 

record before me clearly establishes that Scott has engaged in protected activity which include 

the filing of 105(c) complaints with MSHA on March 3, 2010 and again in October, 2010. 

Rickey Joe Strattis v. ICG Beckley, LLC, 32 FMSHRC 614, 616 (June 2010) (ALJ) (holding that 

filing a 105(c) discrimination complaint is a protected activity for which operators are barred 

from retaliating against). 

Scott testified that he also engaged in protected activities when he submitted “Talking 

Safety” requests and sent emails to mine management about unsafe conditions. All such 

activities were known to the mine and in most instances Scott advised Newmont before he filed a 

discrimination complaint with MSHA and before meeting with investigators. Beginning in 

February, 2009, Scott complained about the unsafe activities of the shovel operator, Stark, and 

the following day refused to load with Stark because Scott believed him to be an unsafe 

equipment operator. As a result, Scott was reprimanded for changing the shovel operator 

assignment without seeking foreman approval. Following that incident, Scott provided a number 

of safety suggestions through the “Talking Safety” program in 2009. Jt. Stip. 9, 10 and 11. Scott 

continued to make safety suggestions through that program in 2010, primarily in June, July and 

August. Jt. Stip. 21, 23, 24, 25, 26, 27. Scott filed two discrimination complaints with MSHA 

prior to his termination and in each instance he made the company aware of the complaint. 

Finally, the record demonstrates that Scott sent emails to management and supervisors about 

various issues that were safety related, including exposure to dust by haul truck drivers. 

Scott has also shown that he was subject to a number of adverse actions during his 

employment with Newmont and, according to Scott, these adverse actions were a direct result of 

the protected activities. I find that moving Scott to the South Area was not an adverse action, as 

many miners are routinely moved to the larger South Area from the North Area, and often times 

34 FMSHRC Page 1627
the reverse. The cell phone write-up was an adverse action, but was remedied by Newmont prior 

to this hearing. The write- up that Scott received for an unexcused absence in February, 2010 

constitutes an adverse action, as do a number of the disciplinary actions, including those on 

March 10, 2010 (allegedly in response to the failure to yield at an intersection), June 20, 2010 

(allegedly in response to being hit by the shovel) and October 11, 2010 (allegedly in response to 

parking early and inadequate dumping). The termination of Scott was the final adverse action 

taken by Newmont. 

B. Discriminatory Motive 

The connection between the protected activities and the adverse actions is a difficult 

issue. The Commission has determined that the hostility or “animus” towards the protected 

activity, timing of the adverse action in relation to the protected activity, and disparate treatment 

may all be considered in determining the connection between the protected activity and the 

adverse action. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 

FMSHRC 2508 (Nov. 1981). 

Having found that Scott engaged in protected activity, and that Scott was subject to 

adverse actions by Newmont, it is necessary to determine whether Newmont was motivated, at 

least in part, by those protected activities when it issued disciplinary actions and eventually 

terminated Scott’s employment. As previously stated by the Commission, direct evidence of 

actual discriminatory motive is rare. Short of such evidence, illegal motive may be established if 

the facts support a reasonable inference of discriminatory intent. Secretary on behalf of Chacon 

v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510–11 (Nov. 1981), rev'd on other grounds sub 

nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.Cir. 1983); Sammons v. Mine Services 

Co., 6 FMSHRC 1381, 1398–99 (June 1984). As the Eighth Circuit analogously stated with 

regard to discrimination cases arising under the National Labor Relations Act in NLRB v. 

Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.1965): 

It would indeed be the unusual case in which the link between the 

discharge and the (protected) activity could be supplied exclusively 

by direct evidence. Intent is subjective and in many cases the 

discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, circumstantial or 

direct, the [NLRB] is free to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine operator against a complaining miner 

or miners includes hostility towards the miner because of his protected activity and disparate 

treatment of the complaining miner by the operator. Chacon, supra at 2510. 

Scott described how the actions taken by the mine were close in time to safety complaints 

that he had made and to complaints he made to MSHA. In one instance Scott informed Fowers 

that he needed time off to meet with an MSHA investigator and Scott understood Fowers to be 

upset about the request. Thereafter, Scott received a written reprimand. At least two of the 

write-ups were handed to Scott shortly after he met with an MSHA investigator. Other actions on 

34 FMSHRC Page 1628
the part of Scott, such as sending an email regarding safety issues were all close in time to the 

adverse actions. 

There is no question that Newmont, and particularly Fowers, found Scott to be a problem 

employee. Fowers, in the self-assessment portion of his performance appraisal for the year 2010, 

wrote that he “helped Newmont achieve great results with one of its most difficult employee 

problems. I provided most of the documentation; this took a great deal of personal time, and 

resulted in a great outcome.” (Tr. 579). That outcome was that Scott was terminated from his 

employment. The question is, did Fowers seek to terminate Scott, at least in part, due to his 

protected activity. It is a very close question but given the timing of the reprimands and 

disciplinary actions, along with the hostility demonstrated toward Scott, I find that the mine took 

actions against Scott based in part upon his protected activity. 

However, I do not find that Scott was treated differently from other employees as he 

alleges. I have reviewed the evidence with regard to other similarly situated Newmont 

employees, particularly those who have a comparable work history. Scott raised several instances 

of discipline or failure to discipline in this regard. In each instance the employee engaged in 

some conduct that was more serious than any action taken by Scott. For example, Tervort was in 

an accident that injured several people, yet he was only given days off. The same is true of 

Martinez, who was involved in several accidents and, after three incidents, was fired. Both 

miners violated company policy that resulted in injury or damage and each received a 

progressive discipline. It appears that, even though the events were more serious, the mine 

followed the progressive discipline policy in terminating the employment of the other 

employees. While I find that in some measure, Newmont discriminated against Scott, I cannot 

rely on the theory of disparate treatment to support the discrimination. Instead I rely upon 

hostility toward Scott and the timing of the events. 

Newmont management’s interactions with Scott indicate definite hostility towards Scott’s 

safety related activities. Fowers admits that Scott caused problems for him and for other 

supervisors, and part of those problems related to the many safety complaints made by Scott. 

Given that hostility, I find that Newmont terminated Scott, at least in part, because of his 

protected activities. Therefore, I find that Scott has met his burden of demonstrating a prima 

facie case of discrimination. I find further that the mine operator has not produced sufficient 

evidence to rebut the prima facie case by showing either that there was no adverse action or that 

the actions were taken for reasons wholly outside the protected activity. 

C. Affirmative Defense of Operator. 

Having found that Scott has established a prima facie case of discrimination, I must now 

consider evidence that indicates that Newmont issued disciplinary citations to and eventually 

terminated Scott due to unprotected activity and “would have taken the adverse action for the 

unprotected activity alone.” Secretary of Labor on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-818 (1981); Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786 (Oct. 1980). 

34 FMSHRC Page 1629
 

 

The Commission has enunciated several indicia of legitimate non-discriminatory reasons 

for an employer's adverse action. These include evidence of the miner's unsatisfactory past work 

record, prior warnings to the miner, past discipline consistent with that meted out to the 

complainant, and personnel rules or practices forbidding the conduct in question. Id. 

The Commission has explained that an affirmative defense should not be “examined superficially 

or be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 

1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine whether they 

are credible and, if so, whether they would have motivated the particular operator as claimed.” 

Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has held that 

“pretext may be found . . . where the asserted justification is weak, implausible, or out of line 

with the operator's normal business practices.” Sec'y of Labor on behalf of Price v. Jim Walter 

Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). 

Upon review, it is obvious that Scott’s work history with Newmont is far from 

exemplary. Witnesses for the company testified that Newmont has a policy of progressive 

discipline and that Scott was issued reprimands in accordance with that policy. The progressive 

discipline policy has a rolling 12 month lag period, meaning that if there is no discipline in one 

year, the last discipline falls off the record and the progression of discipline begins anew. Some 

of the discipline warnings are for being absent from work, however, those had little bearing on 

the termination of Scott. The notices are as follows. 

August 22, 2009 Verbal reprimand for refusing to load with assigned 

operator. 

January 18, 2010 Written warning for excessive absenteeism. Jt. Stip. 12. 

February 18, 2010 Written warning for an unexcused absence (called in). 

March 10, 2010 Written warning for inadequate job performance (failed to 

yield at an intersection). 

June 20, 2010 Written warning and one day suspension for inadequate job 

performance (parking truck too close to shovel, shovel hit 

his truck). Jt. Stip. 22. 

October 11, 2010 Inadequate job performance (Fower saw Scott quit several 

minutes early and ordered him back to work; Scott did not 

respond. Cheney complained about Scott’s refusal to 

cooperate in dumping in the correct area. Scott also refused 

to discuss complaint from operator when asked to do so.) 

The early write ups were issued by Hutsell, but after Scott was moved to the South Area 

in February, 2010, the reprimands were issued by Fowers, the senior pit foreman. Fowers 

testified that he first investigated each incident with Scott and would not have issued any write 

up without the approval of HR. (Tr. 222). 

In slightly more than one year, Newmont issued Scott five warnings (four written and one 

verbal) primarily for subpar job performance. Scott argued that some of these disciplinary 

actions, particularly the ones immediately preceding his termination, were merely retaliation for 

his safety related activities at the mine. I might agree that the final incident, Scott parking his 

truck before the end of shift, was a minor violation, particularly if Scott were cleaning his truck 

34 FMSHRC Page 1630
as he alleges. The difficulty for Scott is that Fowers told two others that it was too early to quit 

just prior to Scott and then called Scott on the radio three times. Fowers was in a good position 

to see that Scott was in his truck, and not out cleaning as Scott alleged. Also, all employees on 

the shift had been warned earlier to not to stop before 7:10, yet Scott decided to quit a few 

minutes early. In many instances, stopping work a few minutes ahead of time would not be 

worthy of discipline, but this instance was different, given the prior warning and Scott’s obvious 

decision to ignore his supervisor. I credit Cheney’s testimony that, on that same night, Scott 

would not cooperate with him and that it appeared Scott was purposefully dumping in the wrong 

location. While Scott admits to no wrongdoing that night, I find that there is credible evidence to 

support Newmont’s position that the reprimand was warranted. 

I also find Fowers to be a credible witness. He admits that he thought Scott was a 

problem at the mine, and understood that Scott made a number of safety complaints. Fowers 

explained that he carefully documented and reprimanded Scott as appropriate and followed the 

steps of the progressive discipline policy in order to terminate his employment. Fowers’ 

testimony is not only supported by Cheney, who is not a supervisor, but also by Tim Wright, 

who observed a number of the incidents that involved Scott. 

The incident with the cell phone, which was removed from Scott’s file, was not a 

legitimate exercise of the disciplinary process. Nor was the warning for being absent without a 

good reason in February, 2010. However, the remaining disciplinary actions have a real basis in 

fact and the mine has shown that those disciplinary actions against Scott were warranted. 

Admittedly, Fowers wanted to get rid of Scott, but that was due, at least in part, to the fact that 

Scott continued to go above him in the chain of command with complaints and suggestions 

without giving Fowers the opportunity to respond. A review of some of the emails to mine 

management sent by Scott demonstrates an angry and sometimes threatening attitude on his part. 

In addition, it has been shown that Scott routinely interjected himself into matters that Fowers 

believed did not concern him, such as alleged harassment against Medina or making a complaint 

on behalf of Linenger. Fowers saw these actions as interfering with management prerogatives. 

Given the actions of Scott, I find that Newmont not only had legitimate concerns, but legitimate 

reasons to terminate Scott’s employment and that, even without the protected safety activity, 

Scott would have been terminated. 

I find no evidence that Scott was treated any differently than other employees with 

respect to the reprimands, both verbal and written, he received or the company’s enforcement of 

its progressive discipline policy. Therefore, I agree with Newmont that Scott would have been 

terminated based upon his unprotected activity alone. 

34 FMSHRC Page 1631
 

IV. ORDER 

As discussed above, I find that Jeff Scott has demonstrated a prima facie case of 

discrimination based upon his many protected activities and the mine’s response. Further, I find 

that Newmont has presented a credible and legitimate basis for disciplining and eventually 

terminating the employment of Jeff Scott based upon actions other than his protected activity. 

Therefore, Mr. Scott’s discrimination complaints are DISMISSED. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Andrew Rempfer, Larson Welsh, Cogburn Law Office, 9555 S. Eastern Avenue, Suite 280, Las 

Vegas, NV 89123 

Karen Johnston, Laura Beverage, Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, 

CO 80202 

Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 

34 FMSHRC Page 1632
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

July 13, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEST 2009-1213-M 

Petitioner : A.C. No. 10-01911-187445 

:

v. : Docket No. WEST 2010-405-M 

: A.C. No. 10-01911-205342 

HIGHLAND ENTERPRISES, LLC, :

 Respondent : Docket No. WEST 2011-261-M 

: A.C. No. 10-01911-237626 

: 

Mine: Mt. Solo Pit 

DECISION AND ORDER 

Appearances: Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 

 Denver, Colorado for Petitioner 

Don Blewett, pro se, Highland Enterprises, LLC, Grangeville, Idaho for 

Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

These cases are before me on petitions for assessment of civil penalties filed by the 

Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration 

(MSHA), against Highland Enterprises, LLC (Respondent), pursuant to sections 105 and 110 of 

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

Five 104(a) citations remain at issue.1 

1

 At the hearing, the parties made a joint motion on the record to settle all three citations 

at issue in Docket No. WEST 2011-261-M, i.e., Citation Nos. 8562410, 8562411, and 8562412 . 

See Tr. 13-14. At the hearing, the parties also made a joint motion to settle four of the eleven 

citations at issue in Docket No. WEST 2010-405, i.e., Citation Nos. 6483465, 6483466, 

6483467, and 6483468. See Tr. 14-15. After the hearing, pursuant to ongoing settlement 

negotiations, the parties settled four of the remaining seven citations in Docket No. 

(continued...) 

34 FMSHRC Page 1633
An evidentiary hearing was held in Moscow, Idaho. The parties introduced testimony 

and documentary evidence, and witnesses were sequestered. On the entire record, including my 

observation of the demeanor of the witnesses,2

 and after considering the post-hearing briefs, I 

make the following: 

II. Factual Background 

A. Stipulated Facts 

The parties stipulated to the following facts, which were received into evidence as Joint 

Ex. 1.3 Tr. 10-11. 

1. These dockets involve a surface crushed and broken-stone mine known as the Mt. 

Solo Pit, which is owned and operated by Respondent. 

2. The mine location changes. When the citations in the above-captioned dockets were 

issued, the mine was located near Lewiston, Idaho. 

3. The mine, MSHA ID 10-01911, is subject to the jurisdiction of the Federal Mine 

Safety Act and Health Act of 1977 (the Mine Act), 30 U.S.C. §§ 801 through 965. 

4. The Administrative Law Judge has jurisdiction over these proceedings pursuant to 

§ 105 of the Mine Act. 

5. Respondent is an operator as defined in section 3(d) of the Mine Act, 30 U.S.C. 

§ 803(d). 

1

(...continued) 

WEST 2010-405, i.e., Citation Nos. 6483470, 6483471, 6483472, and 6483475, and also settled 

three of the five citations at issue in Docket No. WEST 2009-1213, i.e., Citation Nos. 6475789, 

6475790, and 6475791. As set forth in Section III below, I have considered the representations 

presented and conclude that the proposed settlements are appropriate under the criteria set forth 

in Section 110(i) of the Act. Accordingly, those settlement agreements are approved. 

2

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, and consistency or lack 

thereof within the testimony of witnesses and between the testimony of witnesses. 

3

 In this decision, “Tr.” refers to the hearing transcript; “J. Ex. #” refers to the parties’ 

joint exhibits; “P. Ex. #” refers to the Secretary’s exhibits; “R. Ex. #” refers to the Respondent’s 

exhibits; “Sec’y Br.” refers to the Secretary’s Post-Hearing Brief; and “Resp’t Br.” refers to the 

Post-Hearing Brief of Highland Enterprises, LLC. 

34 FMSHRC Page 1634
6. Respondent is engaged in mining operations in the United States and its mining 

operations affect interstate commerce. 

7. Kenneth Poulson and Scott Amos are authorized representatives of the United States 

Secretary of Labor assigned to MSHA’s Boise, Idaho field office and were acting in an 

official capacity when the citations were issued. 

8. Respondent demonstrated good faith in abating the violations at issue in these dockets. 

B. Findings of Fact and Conclusions of Law Regarding Unsettled Citations 

1. Docket No. WEST 2009-1213-M4 

a. Citation 6475792 

Citation 6475792 alleges that Respondent violated 30 C.F.R. § 56.11027 by failing to 

provide a handrail on a work platform at the portable crusher plant. The cited standard at 30 

C.F.R. 56.11027 provides that “[s]caffolds and working platforms shall be of substantial 

construction and provided with handrails and maintained in good condition . . . .” The citation 

alleges the following condition or practice: 

There were no handrails provided on the elevated work platforms for the cedar 

rapids roll crusher on both sides. The work platform measures approximately 50 

inches above the ground. The work platform was approximately 24 inches wide 

and 9 feet long. There were sets of access steps provided on both sides to access 

the work platform. Miners would access this area to perform maintenance work 

as needed. This condition exposes persons to serious fall related injuries. 

4

 At the outset of the hearing, Respondent moved for summary judgment on all citations 

in Docket No. WEST 2009-1213-M because Respondent had not completed its pre-operational 

inspection and the generator for the electric motors had not been started and was locked and 

tagged out when the MSHA inspector arrived at the Lewiston, Idaho mine site on the morning of 

April 14, 2009. Tr. 16. Counsel for the Secretary opposed the motion and argued that the cited 

conditions had existed when the plant was last operating. Tr. 17. I denied the motion because 

general issues of material fact were in dispute, but permitted Respondent to revisit the substance 

of its argument in its post-hearing brief, after I heard the evidence. Tr. 17-19. Respondent did 

noy raise this argument again in its post-hearing brief. Furthermore, as explained below, record 

evidence and admissions from Respondent support the Secretary’s position. 

34 FMSHRC Page 1635
The violation is alleged to be significant and substantial (S&S),5

 with gravity alleged to 

be reasonably likely to result in lost workdays or restricted duty, and one person affected. 

Negligence is alleged as moderate. The Secretary proposes a penalty of $585.00. 

On April 14, 2009, MSHA inspector Kenneth Poulson6 inspected Respondent’s roll 

crusher at the Lewiston, Idaho location and issued the instant citation because an alleged work 

platform did not have handrails. Tr. 117-18; P. Ex. 4, pp. 5-6. Respondent argues that the cited 

area is a trailer fender, not a work platform, and the fender is required by the Department of 

Transportation for safety during transport. Respondent further argues that inspector Poulson 

conceded that there would be no violation if Respondent’s miners tied off when using the alleged 

platform (Tr. 165-170), and the testimony of Respondent’s foreman, Colby Blewett, established 

that Respondent did so. R. Br. at 2; Tr. 355, 398, 408-09. 

At the hearing, Colby Blewett admitted that the cited area was used on rare occasions as 

a work platform. See Tr. 345-355, 408-09. It is undisputed that the work platform had no 

handrails. Tr. 117; P. Ex. 4, pp. 5-6. 

Blewett further testified, however, that Respondent’s miners always tied off with a onefoot lanyard, and he informed inspector Poulson of this practice. See Tr. 345-55, 408-09. By 

contrast, inspector Poulson testified that Blewett told him during the inspection that Respondent 

did not use the cited area as a work platform, and if Respondent needed to access the area, it 

would use a ladder. Tr. 129-130. Poulson testified that the issue of tying off was not broached 

by Blewett. Tr. 170. 

5

 The S&S terminology is taken from section 104(d)(1) of the Mine Act, which 

distinguishes as more serious any violation that “could significantly and substantially contribute 

to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 

6

 Poulson has worked for MSHA as an inspector since July 2001 and received his 

authorized representative card in April 2002. Tr. 104-05. He primarily inspects surface sand 

and gravel operations and a handful of underground metal/non-metal mines throughout Idaho, 

eastern Washington, eastern Oregon and Hawaii. Tr. 105. Poulson received classroom and 

on-the job field training at MSHA's training academy in Beckley, West Virginia, and returns 

every two years for refresher training. Tr. 106. He is also a trained accident investigator. Prior 

to joining MSHA, Poulson was employed at an underground silver mine (Sunshine Mine) for 

twenty-four years. He worked underground and at the surface crushing plant, performed 

maintenance work at the antimony plant, performed mechanic functions, and was foreman of the 

maintenance crew in the mill. Tr. 107-08. I note that credible testimony from an experienced 

MSHA inspector, such as Poulson, is entitled to substantial weight. Harlan Cumberland Coal 

Co., 20 FMSHRC 1275, 1278-79 (1998); Buck Creek Coal, Inc., 52 F.3d 133, 135-36 (7th Cir. 

1999). 

34 FMSHRC Page 1636
 

 

R. Ex. 1, an April 21, 2009 letter to the MSHA Conference and Litigation 

Representative, contesting the violations in Docket 2009-1213, does not mention the tie-off 

rationale as a basis for the contest of this citation. There is no mention of tying off or using a 

safety lanyard in the letter. Rather, Respondent states in said letter that the platform was not a 

work platform and that “no maintenance work” was done on the platform. As noted, Blewett’s 

admission at trial established that this was not the case. In these circumstances, I credit Poulson 

that the “tying off” defense was not raised before trial. Rather, it was developed at trial, is 

unsupported by Respondent's own prior statements, and I give it little weight.7

 Section 56.11027 unambiguously requires working platforms to have handrails. The 

standard has no provision exempting a work platform from the handrail requirement because 

miners allegedly tie off when accessing the platform. The standard covering “tie offs” is set 

forth in 30 CFR § 56.15005. It provides: “[s]afety belts and lines shall be worn when persons 

work where there is danger of falling.” Section 56.15005 does not provide any exemption from 

required safety lines when a handrail is in place. The standards are mutually exclusive. See 

Northwest Aggregates, 20 FMSHRC 518, 525-526 (May 1998)(ALJ Manning). To the extent 

that inspector Poulson testified to the contrary at trial (Tr. 166-69), I agree with the Secretary 

that such testimony represents a misunderstanding of Commission case law.8 

In short, even the alleged use of safety lines where there is a danger of falling does not 

obviate the requirement for handrails on work platforms under the cited standard. Accordingly, I 

find that Respondent violated 30 C.F.R. § 56.11027 by failing to provide handrails on the work 

platform on the roll crusher. 

The citation was terminated when Respondent chose to cut off the platform, after 

receiving MSHA approval, because it was the quickest and easiest way to get back to work and 

7 See, e.g., LAC Bullfrog, Inc., 18 FMSHRC 422, 430-31 (March 1996) (ALJ Hodgdon) 

(statements given by witnesses close to the time of the incident, when details are fresh and there 

has been no opportunity to formulate statements favorable to their cause, are more reliable than 

later embellished or inconsistent statements). 

8

 Handrails are an engineered safety requirement that remain in place no matter who is 

using the platform. Tying off depends on the cognitive action of the person working on the 

platform, both in making the decision to use such personal protection and the ability to use it 

properly. As this Court has stated, “the Commission interprets safety standards to take into 

consideration ordinary human carelessness.” Beckley Crane & Construction, Inc., 33 FMSHRC 

372, 382 (Feb. 2011)(ALJ McCarthy), citing Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 

(Sept. 1984). “Consequently, the construction of mandatory safety standards, which involve 

miner behavior cannot ignore the vagaries of human conduct.” Id., citing, e.g., Great Western 

Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 

(Nov. 1981). 

34 FMSHRC Page 1637
fill production orders. Tr. 130, 133, 348-349. Therefore, I reject Respondent’s argument that 

MSHA is financially responsible for re-installing the work platforms. Although I receive R. Ex. 

3 into evidence, I find that this estimate of $600.00 to re-weld the work platform back on the roll 

crusher is immaterial. I conclude, contrary to Respondent’s argument, that MSHA is not 

responsible to compensate Respondent for such cost. 

I also find that the failure to place handrails on the work platform was S&S. The Mine 

Act defines an S&S violation as one “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)(1). A violation is S&S “if, based on the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation under National Gypsum, the Secretary must prove the four 

elements of the Mathies test: (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. See 

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal v. 

MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); 

Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies 

criteria). An evaluation of the reasonable likelihood of injury is made assuming continued 

normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 

1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984)). 

 The third element of Mathies, which requires “a reasonable likelihood that the hazard 

contributed to will result in an injury,” is often the most difficult element for the Secretary to 

establish under the Mathies test. See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862, 

870 (June 1996) (Marks, Comm’r, concurring in result) (observing that during the 12-year period 

immediately following Mathies, over 93% of the Commission’s 47 decisions involving an S&S 

issue concerned the third element). In U.S. Steel IV, the Commission held that “the third element 

of the Mathies test does not require the Secretary to prove it was ‘more probable than not’ an 

injury would result.” 18 FMSHRC at 865 (citation omitted). 

At the same time, the Commission has long held that “[t]he fact that injury [or a 

condition likely to cause injury] has been avoided in the past or in connection with a particular 

violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting 

Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC 

899, 906–07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to 

violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 18 

FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative equipment 

does not preclude S&S finding). 

34 FMSHRC Page 1638
The Commission recently reiterated these principles in Cumberland Coal Resources, LP, 

2011 WL 5517385 (Oct. 5, 2011),9 and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 

2010). The Commission emphasized that the test under the third prong of Mathies is whether the 

hazard fostered by the violation is reasonably likely to cause injury, not whether the violation 

itself is reasonably likely to cause injury. Cumberland Coal Res., 2011 WL 5517385, at *5; 

Musser, 32 FMSHRC at 1280–81, citing Elk Run Coal and Blue Bayou Sand & Gravel, supra. 

Applying these principles, I have found the underlying violation of a mandatory safety 

standard. I also find that the missing handrails, which protect persons from falls, created a 

discrete fall hazard or measure of danger to safety. With respect to the third and fourth Mathies 

elements, the Secretary has established that the fall hazard was reasonably likely to cause injury 

and that such injury would be of a reasonably serious nature. In this regard, I give substantial 

weight to Poulson’s testimony that even a one-time exposure to the hazard was too great as it 

was reasonably likely that a miner working off the platform, which lacked handrails and was 50 

inches off the ground person would easily fall off either backwards or forwards and receive 

serious injuries, such as a broken leg, resulting in lost work days or restricted duty. Tr. 120, 127. 

 The record further establishes that miners are exposed to the fall hazard when they access the 

work platform to adjust a bolt holding tension on the roll crusher (Tr. 121, 125-26; P. Ex. 4, p. 

6), or to work on the electrical motor, wiring, v-belt, pulleys, trough and rollers, and Marco cans. 

Tr. 119-20, 347, 350, 354-55. Given these reasons for miners accessing the work platform, and 

given Poulson’s testimony concerning the serious injury likely to result from a fall from the 

platform, the Secretary has established the third and fourth element of the Mathies test and 

shown that the violation is S&S. 

I further find that the failure to place handrails on the work platform was the result of 

Respondent's moderate negligence.10 I have credited inspector Poulson’s testimony that the only 

9

 The Commission in Cumberland Coal Resources remanded to the Administrative Law 

Judge for a reassessment of civil penalties, as it vacated the Judge’s conclusions on the issue of 

S&S. 2011 WL 5517385, at *11. Cumberland Coal Resources appealed the Judge’s Decision 

on Remand to the Commission, which denied its Petition for Discretionary Appeal. Cumberland 

Coal Res., LP, Docket No. PENN 2008-189 (FMSHRC Nov. 14, 2011). The Administrative Law 

Judge’s decision is currently on appeal before the United States Court of Appeals for the D.C. 

Circuit. Cumberland Coal Res., LP, Docket No. PENN 2008-189 (FMSHRC Oct. 25, 2011) 

(ALJ), appeal docketed, No. 11-1464 (D.C. Cir. Nov. 29, 2011). 

10 Under the Mine Act, an operator is held to a high standard of care, and the failure to 

exercise this high standard of care constitutes negligence. 30 C.F.R. § 100.3(d). A mine 

operator must be on the alert for conditions and practices in the mine that affect the safety or 

health of miners and to take steps necessary to correct or prevent hazardous conditions or 

practices. Id. The Mine Act's regulations define four different negligence levels: 1) reckless 

disregard occurs when the operator displays conduct which exhibits the absence of the slightest 

(continued...) 

34 FMSHRC Page 1639
mitigating factor that Respondent offered during the inspection was that the cited platform was 

not a work platform, when Blewett, in fact, knew that he had used the platform for work 

purposes based on his inconsistent trial testimony. Moreover, I have found that Respondent’s 

alleged tying-off policy, even if credible, is not a substitute for handrails, and I note that even 

trained employees violate established company policy. See Tr. 192. In these circumstances, I 

conclude that Respondent has not shown considerable mitigating circumstances sufficient to 

establish low negligence. Accordingly, I affirm inspector Poulson’s designation of negligence as 

moderate. In sum, Citation 6475792 is affirmed, as written. 

I next address the appropriate penalty. A mine operator is subject to a civil penalty for 

any violation occurring at its mine. 30 U.S.C. § 820. Such penalties provide a “strong incentive 

for compliance with the mandatory health and safety standards.” Nat'l Independent Coal 

Operators' Ass'n v. Kleppe, 423 U.S. 388, 401 (1976). In enacting the Mine Act, Congress 

aimed to set sufficiently high penalties to effect deterrence. “To be successful in the objective of 

including [sic] effective and meaningful compliance, a penalty should be of an amount which is 

sufficient to make it more economical for an operator to comply with the Act's requirements than 

it is to pay the penalties assessed and continue to operate while not in compliance.” S. Rep. No. 

95-181 at 90 (1977). 

The Court has broad discretion to assess penalties de novo. See, e.g., Spartan Mining 

Co., 2008 WL 4287784 at *22 (2008) (affirming ALJ's 800 percent increase of proposed penalty 

based upon gravity and negligence factors); Mountain Edge Mining, Inc., Docket No. WEVA 

2009-1617 (ALJ, May 19, 2011) (imposing a penalty amount eight times that originally assessed 

by MSHA). In assessing penalties, the Commission and its judges must “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.” 30 U.S.C. § 

820(i). 

I have reviewed the Certified Assessed Violation History Reports in the record. 

Respondent has about 18 paid violations, three of which were issued as S&S, at the Mt. Solo Pit 

Mine during the 24 months preceding April 4, 2009. Respondent is a small mine operator. The 

violations herein were abated in good faith. Respondent does not argue that the penalties 

proposed will have an adverse effect on Respondent’s ability to remain in business, and two of 

10(...continued) 

degree of care; 2) high negligence occurs when an operator knew or should have known of a 

Mine Act violation, and there are no mitigating circumstances; 3) moderate negligence occurs 

when an operator knew or should have known of a violation, but there are mitigating 

circumstances; and 4) low negligence occurs when an operator knew or should have known of a 

violation, but there are considerable mitigating circumstances. 30 C.F.R. § 100.3(d), Table X. 

34 FMSHRC Page 1640
 

the proposed have penalties at issue herein have been slightly reduced. My gravity and 

negligence findings for each violation are discussed herein. Accordingly, applying the penalty 

criteria set forth in section 110(i), I find that the proposed penalty of $585.00 is appropriate for 

the violation set forth in Citation 6475792. 

b. Citation 6475793 

Citation 6475793 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to 

guard the #10 conveyor head pulley on the roll crusher. The cited standard at 30 C.F.R. § 

56.14107(a) provides that “[m]oving machine parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, couplings, 

shafts, fan blades, and similar moving parts that can cause injury.” The citation alleges the 

following condition or practice: 

The #10 conveyor head pulley drive v-belts and sheaves was not guarded on the 

backside to prevent accidental contact with the moving machine parts. The v-belts 

and sheaves were approximately 42 inches above the work platform deck. The vbelts and sheaves were provided with guarding on all sides except the back side. 

This area would be accessed on an as needed basis to perform maintenance work. 

This condition exposes persons to serious injuries should they accidentally contact 

the moving machine parts. 

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an 

injury or illness that could reasonably be expected to result in a permanently disabling injury, 

and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty 

of $176.00. 

Respondent argues that there is no access to the cited area while equipment is running 

and that all equipment must be shut down before an employee could be within close range of the 

head pulley. Respondent further asserts that the pulley had never been cited before,11 and it is 

more than seven feet above a walkway. R. Br. at 2.12 

11 To the extent Respondent has raised a fair notice argument, I reject it. MSHA cannot 

be estopped from enforcing its regulations simply because it did not previously cite the mine 

operator. See Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416-17 (10th Cir. 1984). 

More importantly, the plain language of the guarding regulation provides adequate notice of the 

regulated conduct and thus satifies due process. See Mainline Rock and Ballast, Inc. v. Sec’y of 

Labor, 2012 WL 1111258, at *5 (10th Cir. 2012). 

12 The parties agree that the unguarded head pulley components were 42 inches above the 

work platform cited in Citation 6475792. Tr. 141, 409; see also P. Ex. 5, p. 4. 30 C.F.R. 

56.14107(b) states that guards are not required where the exposed moving parts “are at least 

(continued...) 

34 FMSHRC Page 1641
During his April 14, 2009 inspection of the # 10 conveyor head pulley, Poulson observed 

that the back side of the area containing the head pulley components (v-belt, pulleys on the drive 

motor, and sheaves) for the No. 10 belt was not guarded. Tr. 139; P. Ex. 5. Head pulley 

components are moving parts that present an entanglement hazard and risk of injury. Tr. 142; P. 

Ex. 5, p. 1. Respondent admits that the head pulley components were not guarded on the back 

side. Tr. 409. In addition, Respondent admits that the plant had operated the day prior to the 

inspection (Tr. 397), and that the roll crusher, including the head pulley components, had been in 

the identical condition since March 24, 2009. Tr. 357-58. Accordingly, because Respondent 

admitted to operating the #10 conveyor head pulley in the cited condition, I find the violation of 

30 C.F.R. § 56.14107(a). 

The citation was terminated by the termination of the previous citation, Citation 6475792. 

That is, by removing the work platform, the head pulley components were more than seven feet 

above ground with no intermediate platform to stand on, and, therefore, no longer required 

guarding. Tr. 146; P. Ex. 5, p. 5. 

I further find that the citation is non-S&S,13 and the result of Respondent's moderate 

negligence. Inspector Poulson recognized that the failure to guard the back side of the head 

pulley was unlikely to cause an injury because of infrequent access while the equipment was 

running, but he also recognized that any such injury was reasonably likely to be permanently 

disabling. Tr. 143. Thus, even though the exposure was minimal, a permanently disabling 

entanglement hazard was present. 

I find that negligence was designated properly as moderate. Poulson credibly testified 

that Respondent should have known about the unguarded back side of the head pulley 

components (Tr. 143), and Respondent admitted to accessing the work platform (while allegedly 

tied off), but also admitted that there was a hazard if one was standing on the work platform 

without the conveyor being locked and tagged out. Tr. 354-55. The head pulley was accessible 

from the work platform and Respondent used the work platform to access it. In these 

circumstances, I again conclude that Respondent has not shown considerable mitigating 

circumstances sufficient to establish low negligence. Accordingly, I affirm inspector Poulson’s 

designation of negligence as moderate. 

In sum, Citation 6475793 is affirmed, as written. Applying the penalty criteria set forth 

in section 110(i) and outlined above, I find that the proposed penalty of $176.00 is appropriate. 

12(...continued) 

seven feet away from walking or working surfaces.” 30 C.F.R. 56.14107(b) (emphasis added). 

Because 42 inches is less than seven feet, Respondent’s argument that the cited area does not 

require guarding lacks merit. 

13 I have no authority to modify the citation to S&S. See Mechanicsville Concrete, Inc., 

t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996). 

34 FMSHRC Page 1642
2. Docket No. WEST 2010-405-M 

a. Citation 6483469 

Citation 6483469 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to 

guard the head pulley on the #7 conveyor belt. The cited standard is set forth above. The 

citation alleges the following condition or practice: 

The head pulley of the #7 belt on the screen plant was not guarded on the side. The 

head pulley was approximately 1 foot above and 20 inches away from the end of the 

walkway. Miners access this area for maintenance work on occasion. Contact with 

head pulley would result in entanglement type injuries. 

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an 

injury or illness that could reasonably be expected to result in a permanently disabling injury, 

and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty 

of $100.00. 

Respondent argues that this area was guarded, pursuant to the directions of a previous 

inspector, when a chain was installed at the end of the walkway, and the area passed all 

subsequent inspections prior to the instant one. Respondent further argues that no access is 

allowed in the area when the crusher is operating. Rather, the cited area is only accessed during 

shut down for maintenance or repair, thus precluding access to the head pulley when equipment 

is moving. R. Br. at 2-3. 

During his October 20, 2009 inspection14 of the #7 conveyor belt, Poulson observed that 

the head pulley of the # 7 belt at the screen plant was not guarded on the side. Tr. 182; P. Ex. 12, 

pp. 1 and 4. Respondent admits that the cited pulley was not guarded (Tr. 411), but disputes 

that the cited pulley needed guarding. Tr. 358, 413. In this regard, Respondent first argued that 

the pulley did not require a guard because it was more than seven feet in the air. Tr. 358. The 

record establishes, however, that the walkway that accessed the pulley was eight feet above the 

ground. Tr. 359. The pulley itself was approximately one foot above that walkway. P-12, p. 1. 

As discussed previously, section 56.14107(b) states that guards are not required where the 

exposed moving parts “are at least seven feet away from walking or working surfaces.” 30 

C.F.R. 56.14107(b). Because the pulley was within one foot of a walkway, guarding was 

required. 

Respondent also argues that guarding was not necessary because mine policy prohibited 

access while the plant was running. Tr. 360. The walkway that accesses the pulley, however, 

remained in place at all times. Tr. 411. Placing a ladder by the elevated walkway is all that was 

required for access. Tr. 412. In addition, the record confirms that there was considerable work to 

14 This inspection occurred at the Winchester, Idaho location. 

34 FMSHRC Page 1643
be done via the walkway. Miners use it to access the screens and the screen decks. Miners often 

repair holes in screens, or change screens depending upon the size of the product they are 

crushing. Tr. 185, 360. Miners also access the elevated walkway to ensure that the screen boxes 

have an oil lubricated bath, or to repair wires when a large rock is crushed. 186-87, 360-61. 

The unguarded pulley was “finned,” as opposed to smooth, and the finned nature of the 

pulley heightened the hazard because it could “grab” an exposed miner more easily than a 

smooth pulley. Tr. 184. Most likely one miner at a time would be exposed to the hazard. Tr. 

187. The pulley had operated in the same unguarded condition at its previous Lewiston, Idaho 

location. Tr. 413-14. Respondent does not contend that it failed to run the unguarded pulley 

while the plant was operating. Tr. 412-413. Rather, the record establishes that the plant was 

running the day of the inspection, prior to MSHA’s arrival. Tr. 188-89. 

The unguarded pulley was located approximately 20 inches from the end of an elevated 

platform walkway (“walkway”). Tr. 185-87. Inspector Poulson testified that the chain in the 

photograph (P. Ex. 12, p. 4) was is present as fall protection from the elevated walkway and was 

not a substitute for a guard. Tr. 186. The proximity of the unguarded pulley to the walkway 

placed miners at risk of a slip, trip or fall entanglement injury that could be permanently 

disabling. Inspector Poulson determined that a miner was unlikely to be injured by the cited 

condition, however, because miners did not frequently access the walkway while the plant was 

operating. Tr. 189. 

Given the unlikely risk of injury, Inspector Poulson gave Respondent 24 hours to 

terminate the citation. Tr. 193; P-12, p.1. When Poulson returned the next day (October 21, 

2009) to terminate the citation, the mine was preparing to move its location. Tr. 193. After 

confirming that the plant moved, Poulson terminated Citation 6483469 on October 22, 2009. Tr. 

194. 

Because the head pulley of the #7 belt on the screen plant was not guarded on the side, 

thereby creating a hazard that could cause a entanglement injury, I find that Respondent violated 

30 C.F.R. § 56.14107(a). I find that the failure to guard the head pulley of the #7 belt was 

designated properly as non-S&S. I have no authority to modify the citation to S&S. See 

Mechanicsville Concrete, Inc., t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996). Even 

though the exposure was minimal, a permanently disabling entanglement hazard existed. Each 

time a miner accessed the walkway when the plant was running, he was exposed to the 

entanglement hazard. 

I reduce the negligence, however, from moderate to low. I credit Respondent’s 

testimony that employees were trained not to access the walkway when the plant was running. I 

further note that the cited area was chained off at the end of the walkway. I conclude that 

Respondent has not shown considerable mitigating circumstances sufficient to establish low 

negligence. 

34 FMSHRC Page 1644
In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying 

the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty 

of $100.00 to $65.00. 

b. Citation 6483473 

Citation 6483473 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to 

guard the fan blade on the bulldozer. The cited standard is set forth above. The citation alleges 

the following condition or practice: 

The fan blade, v-belts and sheaves located on the engine of the Cat D9H 

Dozer, SN 90V1009, are not properly guarded to protect persons from accidental 

contact with the moving machine parts. The fan is missing a section of guard on 

one side. The hazards are located inside the engine compartment and next to the 

tracks of the dozer. Persons are occasionally in the area exposing them to 

entanglement injuries. 

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an 

injury or illness that could reasonably be expected to result in a permanently disabling injury, 

and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty 

of $100.00. 

Respondent argues that the dozer is equipped with a reversible fan and that access to the 

cited area is required to reverse the fan and make air flow through the radiator more effective 

during certain times of the year. Respondent further argues that the models of dozers equipped 

with a reversible fan did not have fan guards installed in the cited area in order to permit an 

operator to reverse the fan, as needed. Respondent also notes that the cited area is so far down 

in the engine compartment that the inspector’s pictures taken with a digital camera would not 

turn out. R. Br. at 2. 

On October 20, 2009, Inspector Poulson inspected the Cat D9H Bulldozer head pulley. 

Tr. 223; P. Ex. 16, p. 1. Respondent operated the secondary dozer in question during the 

production of gravel and Anti-Skid, because the primary dozer had been buried in a landslide. 

Tr. 224-25, 376-77. The guard on the fan blade on the engine was missing a pie-shaped piece, 

which exposed v-belts and sheaves. Tr. 227; P. Ex. 16, pp. 1 and 3. 

Although the Secretary claims that Respondent admitted that the fan blade on the dozer 

engine was missing a portion of the guard (citing Tr. 375, 429), Colby Blewett qualified his 

testimony by noting that the manufacturer makes a gap in the guarding so one can reverse the fan 

blades to turn the heater on. Tr. 375-76. Blewett explained that there is no cab in older dozers, 

so Caterpillar designed a “high-tech heater by simply reversing the fan blades that typically blew 

through the radiator to cool the engine off. . . .” Blewett further testified that the cited area was 

very difficult to get to, and one would have to pull other guarding off to lay down and reach in to 

reverse the blades. Tr. 375-429. 

34 FMSHRC Page 1645
The portion of the fan blade which is unguarded is located inside the engine compartment 

and next to the tracks of the dozer. P. Ex. 1. A dozer operator occasionally would be exposed 

to an entanglement hazard as the miner entered or exited the dozer, or checked the engine while 

running, should the miner contact the moving v-belts and sheaves. Tr. 225-27; P. Ex. 16, p. 1. 

Moreover, a dozer operator who stumbled, fell or tripped over the three-inch lugs on the track, 

could stick his hands into the unguarded fan blade, and suffer a permanently disabling injury of 

the hand or fingers. Tr. 227. Inspector Poulson determined, however, that it would be unlikely 

for a miner to be injured because most of the guard was present. Tr. 226. Due to the unlikely 

risk of injury, Poulson terminated the citation on October 22, 2009, when the plant shut down 

and moved. P. Ex. 16, p. 2. 

I find that Respondent violated 30 C.F.R. § 56.14107(a) because a portion of the fan 

blade on the Cat D9H Bulldozer was not guarded, thereby creating a hazard that could cause an 

entanglement injury. An operator is strictly liable under the Mine Act for exposing a miner to 

the hazard notwithstanding any manufacturing design flaw. I further find that the failure to 

guard the dozer's fan blade was non-S&S. As Inspector Poulson recognized, the failure to 

adequately guard the fan blade was unlikely to cause an injury because most of the guard was 

present, but any injury would be reasonably likely to be permanently disabling. Tr. 226. 

Thus, even though the exposure was minimal, a hazard with the potential of a reasonably 

serious and permanently disabling injury was present. 

Based on Colby Blewett’s testimony, however, I find that Respondent in good-faith 

believed that Caterpillar manufactured the dozer fan blade with a gap in the guarding so that one 

could reverse the fan blades to turn on the heater. Moreover, this dozer was an older model used 

on a secondary basis, and this violation apparently not been cited previously. In these 

circumstances, I conclude that Respondent has shown considerable mitigating circumstances and 

I reduce Respondent’s negligence from moderate to low. 

In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying 

the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty 

of $100.00 to $65.00. 

c. Citation 6483474 

Citation 6483474 alleges that Respondent violated 30 C.F.R. § 56.14100(b) by failing to 

maintain and correct the rear-facing flood lights on its dozer. The cited standard provides, 

“[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely 

manner to prevent the creation of a hazard to persons.” The citation alleges the following 

condition or practice: 

The Cat D9H Dozer, SN 90V1009, does not have rear facing flood lights. The lights 

have been removed and not replaced. The dozer operates on a daily basis at the feed 

34 FMSHRC Page 1646
 

 

end of the plant away from other equipment. This condition exposes the operator to 

injuries due to visibility issues in inclement weather when lighting is necessary. 

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an 

injury or illness that could reasonably be expected to result in lost work days or restricted duty, 

with one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty 

of $100.00. 

Respondent argues that its plant operated only during daylight hours and that any 

inclement weather sufficient to darken the sky would result in a complete shutdown of the small 

crusher operation due to safety concerns for crew members. R. Br. at 2. 

During Inspector Poulson's inspection of the dozer discussed above (see Citation 

6483473), Poulson observed that the dozer lacked rear-facing floodlights. Tr. 223; P. Ex. 17, p. 

1. Poulson testified that the wiring was still there, but the lights had been broken or were 

missing and had bot been replaced. Tr. 236. Poulson testified that because the dozer was 

initially manufactured with rear-facing floodlights, the lights constituted safety equipment that 

must be maintained under the cited standard. Tr. 235-36. 

Poulson further testified that Respondent's failure to correct this condition exposed the 

dozer operator, and any miners in the dozer's path, to a collision hazard, particularly during 

dusty, rainy, snowy or dark conditions when visibility was impaired. Tr.234, 237-38. Inspector 

Poulson recognized that any injury would be reasonably serious and anyone working at the mine 

site was exposed to the hazard in the event that the dozer was backing up and collided with a 

miner that the operator did not see, due to poor visibility. Tr. 238. He found it most likely that 

only one miner would be affected at a time, although he noted that the dozer operator was also 

exposed to the hazard. Tr. 238, 240. For example, if the dozer operator was backing up and 

could not see properly, he could hit something and receive a jarring injury. Tr. 240. He further 

concluded that the most likely injury would be lost workdays or restricted duty. Tr. 240. He 

designated the citation as non-S&S after essentially concluding that the failure to maintain 

rear-facing floodlights was unlikely to cause an injury because the dozer operator normally 

operated in daylight hours in decent weather away from other miners. Tr. 240.15 

Inspector Poulson attributed moderate negligence to Respondent. Tr. 240; P. Ex,. 17, p. 

1. In this regard, he concluded that Respondent knew that the dozer lacked rear-facing 

floodlights. Tr. 430. As proffered mitigating circumstances, Respondent argued at the hearing 

that the mine did not operate at night or in inclement weather. Tr. 376, 380. I note, however, 

Respondent’s concession that depending on the size of the job, the mine sometimes operates two 

shifts, including one that starts before the sun comes up, and another that continues after the sun 

goes down. Tr. 391-92. Respondent also acknowledged that inclement weather, such as snow 

15 As noted in note 12, above, I have no authority to modify the citation to S&S. See 

Mechanicsville Concrete, Inc., t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996). 

34 FMSHRC Page 1647
and rain, occurs in Idaho in early fall when the citation was written, and that weather changes 

can occur suddenly, during mid-shift . Tr. 430. In these circumstances, I find that the dozer 

needed rear lights for safety purposes in the context of Respondent’s normal and continued 

mining operations and that Respondent’s failure to maintain the rear-facing flood lights on its 

dozer in contravention of 30 C.F.R. § 56.14100(b) was the result of moderate negligence. 

Accordingly, I affirm the citation as written and find that the Respondent’s failure to 

have rear-facing flood lights on the dozer was non-S&S and the result of Respondent's moderate 

negligence. Applying the penalty criteria set forth in section 110(i) and outlined above, I find 

that the proposed penalty of $100.00 is appropriate. 

III. Motion To Approve Partial Settlement Agreements 

At the hearing, the parties made a joint motion on the record to settle all three citations at 

issue in Docket No. WEST 2011-261-M, i.e., Citation Nos. 8562410, 8562411, and 8562412 . 

See Tr. 13-14. The parties propose that Citation Nos. 8562410 and 8562412 be modified to 

reduce the level of negligence from “moderate” to “low;” and that Citation No. 8562411 be 

modified to reduce the injury or illness that could reasonably be expected to occur from “fatal” 

to “permanently disabling”, and to reduce the proposed penalty from $243.00 to $200.00. 

At the hearing, the parties also made a joint motion to settle four of the eleven citations at 

issue in Docket No. WEST 2010-405, i.e., Citation Nos. 6483465, 6483466, 6483467, and 

6483468. See Tr. 14-15. The parties agreed to reduce the proposed penalty in Citation No. 

6483465 from $873.00 to $786.00; and to accept Citation Nos. 6483466, 6483467, and 6483468, 

as written. 

After the hearing, pursuant to ongoing settlement negotiations, the parties moved for an 

Order approving settlement of four of the remaining seven citations in Docket No. WEST 2010-

405, i.e., Citation Nos. 6483470, 6483471, 6483472, and 6483475. The parties proposed that 

Citation 6483470 be modified to reduce the level of negligence from “moderate” to “low;” to 

reduce the proposed penalty in Citation No. 6483471 from $392.00 to $372.00; to reduce the 

proposed penalty in Citation 6483472 from $117.00 to $105.00; and to accept Citation 6483475, 

as written. 

Also after the hearing, the parties moved for an Order approving settlement of three of 

the five citations at issue in Docket No. WEST 2009-1213, i.e., Citation Nos. 6475789, 6475790, 

and 6475791. The parties proposed to reduce the proposed penalty in Citation 6475789 from 

$176.00 to $155.00; that Citation 6475790 be modified to reduce the level of negligence from 

“moderate” to “low,” and to reduce the proposed penalty from $176.00 to $130.00; and to 

reduce the proposed penalty in Citation 6475791 from $873.00 to $785.00. 

34 FMSHRC Page 1648
The parties stipulated that payment of the amended proposed penalties will not impair 

Respondent's ability to continue in business, that Respondent exhibited good faith in abating the 

cited violations, and that information pertaining to the operator's history of previous violations 

and size are contained in Exhibit A, which was filed by the Secretary along with the petition in 

the above-captioned proceedings. 

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 110(i) 

of the Act. 

III. ORDER 

WHEREFORE, the proposed settlement agreement is APPROVED and the citations 

shall be modified as set forth above. It is ORDERED that the operator pay a total penalty of 

$1,747.00 in four consecutive monthly installments of $436.00 each, and a forth and final 

payment of $439.00, with the first payment due within thirty days of the date of this decision and 

each subsequent payment due every thirty days thereafter until paid in full. 

In Docket No. WEST 2009-1213-M, Citation Nos. 6475792 and 6475793 are affirmed, as 

written, with assessed penalties of $585.00 and $176.00, respectively. In Docket No. WEST 

2010-40-M, Citation Nos. 6475793 and 6475793 are modified to reduce the level of negligence 

from moderate to low and the proposed penalties are reduced in each citation from $100.00 to 

$65.00; and Citation No. 6483474 is affirmed, as written, with an assessed penalty of $100.00. 

Within thirty days of the date of this decision, Highland Enterprises, LLC is ORDERED to pay 

a civil penalty of $991.00 for those violations found herein. 

Upon payment of the penalties assessed herein or agreed to in the approved settlement 

agreements, this proceeding is DISMISSED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

34 FMSHRC Page 1649
Distribution: (E-Mail and Certified Mail) 

Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, CO 80202-5708 

Don Blewett, pro se, Highland Enterprises, LLC, PO Box 356, Grangeville, ID 83530 

34 FMSHRC Page 1650
 

 

 

 

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

 Washington, D.C. 20001

 July 17, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. SE 2009-870-M 

Petitioner : A.C. No. 01-02738-194100-01 

v. :

 : 

WEST ALABAMA SAND & GRAVEL, INC., : Mine: West Alabama Sand & Gravel 

Respondent :

 :

 ORDER GRANTING IN PART AND DENYING IN PART 

SECRETARY’S MOTION FOR SUMMARY DECISION 

AND 

ORDER GRANTING RESPONDENT’S 

MOTION FOR SUMMARY DECISION 

Before: Judge Feldman 

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty 

filed pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act”), 30 U.S.C. § 820(a), by the Secretary of Labor against the Respondent, West Alabama 

Sand & Gravel, Inc. (“West Alabama”). The petition seeks to impose a civil penalty of 

$15,971.00 for an alleged violation of section 56.15005 of the Secretary’s mandatory safety 

regulations governing metal and nonmetal surface mines. 30 C.F.R. § 56.15005. This 

mandatory standard, in pertinent part, requires that “[s]afety belts and lines shall be worn when 

persons work where there is danger of falling.” 

I. Background 

The material facts in this matter are not in dispute. On July 1, 2009, Mine Safety and 

Health Administration (“MSHA”) Inspector Michael Evans conducted a regular biannual 

inspection of the West Alabama Sand and Gravel mine facility in Fayette, Alabama. While at 

the West Alabama mine site, Evans witnessed a driver for an independent trucking company who 

was situated on top of his haul truck, ten feet above the ground. The truck driver, Johnny Koger, 

was an employee of Denbar Transportation (“Denbar”).1

 Koger was in the process of installing 

1

 Whether Denbar trucking was an independent contractor, or a customer of 

West Alabama, is not material to the disposition of this matter. For the purposes of this 

(continued...)

34 FMSHRC Page 1651
 

tarp in order to secure his load. He was not wearing a safety belt, lanyard, or any other type of 

fall protection while he was observed crawling and extending his body over the side of his truck. 

Clay Junkin, West Alabama’s Vice President, was present at the mine at the time Koger was 

observed by Evans.2 

As a result of Evans’ observations, 104(d)(1) Citation No. 6511548, and 

contemporaneous imminent danger Order 6511547,3 were issued by Evans to Junkin citing a 

violation of the mandatory standard in section 56.15005. The imminent danger order has not 

been contested and is not a subject of this proceeding.4 Order No. 6511548 states: 

A customer truck driver was observed climbing on top of the loaded trailer. The 

driver was not wearing a safety belt and lanyard or any other type of restraining 

device to prevent a fall to the ground below. The truck driver was on his knees 

pulling on tarp within inches of the side of the trailer. The truck driver was 

exposed to a fall of ten foot to ground level. Clay Junkin (Vice President) 

engaged in aggravated conduct constituting more than ordinary negligence by his 

statement of knowing this was a hazard, and allowing this practice to continue for 

several years. This violation is an unwarrantable failure to comply with a 

mandatory standard. 

This violation is a factor cited in imminent danger order No. 6511547 issued 

07/01/2009. Therefore, no abatement time was set. 

Although no abatement time was specified in view of the imminent danger order, the 

citation was abated by West Alabama’s posting of a sign that prohibited drivers from climbing 

on trucks. The cited violation was designated as significant and substantial (“S&S”). Junkin 

told Evans that truck drivers “have been climbing on the trucks since 1985.” Evans’ Addendum 

1

(...continued) 

decision, Denbar will be considered an independent contractor. 

2

 To avoid confusion, Clay Junkin was present at the mine site at the time Evans 

observed the subject fall protection violation. Clatus Junkin, the father of Clay Junkin, is the 

president of West Alabama and is representing the company in this matter. Clatus Junkin was 

not present at the mine site at the time the subject citation was issued. See fn. 4 infra. 

3

 An imminent danger order is issued pursuant to section 107(a) of the Mine Act. 

30 U.S.C. § 817(a). The term “imminent danger” is defined in section 3(j) of the Act to mean 

the “existence of any condition or practice in a coal or other mine which could reasonably be 

expected to cause death or serious physical harm before such condition or practice can be 

abated.” 30 U.S.C. § 802(j). 

4

 Civil penalties are not imposed for imminent danger orders issued pursuant to section 

107(a) of the Mine Act. 

34 FMSHRC Page 1652
to Citation No. 6511548. West Alabama had never been cited for a failure of truck drivers to tie 

down during previous MSHA inspections. Although Junkin conceded that he believed the 

practice was hazardous, Junkin told Evans that “he couldn’t make truck drivers not climb [sic] 

on the trucks [-] that it was their truck.” Id. Evans responded that “[Junkin] was responsible for 

what is done or happens on mine property.” Id. As a result of Evans’ conversation with Junkin, 

the cited violation was attributed to an unwarrantable failure. 

Section 3(d) of the Mine Act defines an “operator” as “any owner, lessee, or other person 

who operates, controls, or supervises a coal or other mine or any independent contractor 

performing services or construction at such mine.” 30 U.S.C. § 802(d). (Emphasis added). It is 

well settled that the Secretary has the unfettered discretion to cite an owner-operator of a mine, 

an independent contractor working on mine property, or both, for violations committed by a 

contractor. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 152, 158 (D.C. Cir. 2006) 

rev’g Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005) (reversing the Commission’s 

decision that mine operators are not responsible for violations committed by contractors where 

such operators do not directly contribute to the violation or have significant control over the 

independent contractor’s activities). 

The Secretary filed a Motion for Summary Decision on October 4, 2011, seeking the 

affirmance of 104(d)(1) Citation No. 6511548 that characterized the cited violation as S&S and 

attributed the violation to an unwarrantable failure. The Secretary seeks the imposition of a 

$15,971.00 civil penalty. 

West Alabama opposed the Secretary’s motion on October 24, 2011. It does not dispute 

the fact of the violation or the significant and substantial designation. However, it opposes the 

size of the $15,971.00 proposed civil penalty that primarily is based on West Alabama’s alleged 

unwarrantable failure. I construe West Alabama’s opposition as a motion for summary decision 

on the unwarrantable issue. 

West Alabama is a small operator that has employed no more than eight employees 

during the last three years.5 Sec’y Resp. Br. at 4. West Alabama does not dispute the essential 

facts underlining the citation, namely, that Koger failed to tie down while positioned on top of 

the loaded haul truck. However, West Alabama, relying on Lime Mountain Co., 30 FMSHRC 

1192 (Oct. 1998) (ALJ Manning), asserts that the proposed $15,971.00 civil penalty is 

5

 The Secretary believes that West Alabama’s president Clatus Junkin is also a principal 

of Johnco Materials, a mine operator located in Lowndes County, Alabama. Johnco Materials 

has approximately eight employees. Sec’y Resp. Br. at 3-4. However, the Secretary asserts that 

West Alabama should be considered a large mine operator for civil penalty purposes because 

“Clatus Junkin is a shareholder in Junkin, Pearson, Harrison, Junkin and Pate, LLC, a law firm 

which has reported multi-million dollar settlements.” Id. at 3. Clatus Junkin’s interest in a law 

firm is not a relevant consideration with respect to the application of the penalty criteria under 

section 110(i) of the Act. 30 U.S.C. § 820(i). 

34 FMSHRC Page 1653
“unreasonable and extreme” in light of prior Commission cases involving violations of section 

56.15005. West Alabama Opp. at p. 4. In Lime Mountain, a truck driver for an independent 

contractor was observed on top of his trailer using a compressed air hose without wearing any 

fall protection. Consequently Lime Mountain was cited for a violation of section 56.15005 for 

which the Secretary proposed a civil penalty of $240. Id. at 1193. Judge Manning ultimately 

assessed a civil penalty of $150.00. Id. at 1197. 

During a conference call with the parties, West Alabama also relied on CEMEX Inc., 

33 FMSHRC 1169 (May 2011) (ALJ Paez). CEMEX, a publicly traded company, had posted 

signs at entrances to its mine facility that contract drivers were required to use safety platforms 

to access the tops of tankers. CEMEX, 33 FMSHRC at 1171. Despite the written warnings, a 

contract truck driver was observed standing on top of his tractor-trailer tanker instead of using 

the required safety platforms. Id. Judge Paez assessed a civil penalty of $500.00 for the subject 

section 56.15005 violation. Id. at 1173. 

II. Disposition 

Disposition by summary decision is appropriate provided (1) the entire record establishes 

that there is no genuine issue as to any material fact; and (2) the moving party is entitled to 

summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 

FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). There is 

no dispute as to any issue of material fact with regard to the fact of the cited violation and the 

likelihood of serious injury. 

It is undisputed that Koger was positioned on top of his loaded haul truck in danger of 

falling ten feet to the ground without utilizing any fall protection. A violation is properly 

designated as S&S if it is reasonably likely that the hazard contributed to by the violation will 

result in an accident causing serious injury. Cement Division, National Gypsum, 3 FMSHRC 

822, 825 (Apr. 1981). West Alabama does not deny that it is reasonably likely that the continued 

practice of working on an uneven surface elevated ten feet above the ground will result in an 

accident involving a fall that is reasonably likely to result in serious injury. Consequently, the 

cited violation is properly designated as S&S. 

The remaining issue is the allegation of an unwarrantable failure. Unwarrantable failure 

is “aggravated conduct, constituting more than ordinary negligence . . . in relation to a violation 

of the Act.” Emery Mining, 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is 

characterized by conduct including “reckless disregard,” “intentional misconduct,” 

“indifference” or a “serious lack of reasonable care.” Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 193-94 (Feb. 1991). In resolving an unwarrantable failure issue, the Commission 

has noted that it is significant to determine whether the operator has been placed on notice that 

greater efforts are necessary for compliance. Enlow Fork Mining Co., 19 FMSHRC at 1, 5-6; 

Mullins & Sons Coal 

34 FMSHRC Page 1654
Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 

1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 

1596, 1603 (July 1984). 

Thus, the dispositive issue is whether Junkin’s asserted lack of awareness that West 

Alabama was responsible for contract employees should be viewed as a mitigating circumstance 

with respect to the alleged unwarrantable failure. Regarding actual knowledge, repeated similar 

violations are relevant to an unwarrantable failure determination to the extent that they serve to 

put an operator on notice that greater efforts are necessary for compliance with a mandatory 

standard. Peabody Coal, 14 FMSHRC at 1261. Significantly, there is no history of similar 

violations. Despite biannual MSHA inspections dating back to approximately 1985, the 

Secretary does not contend, and MSHA’s data retrieval system does not reflect, 

that West Alabama was ever cited for a fall protection violation of section 56.15005. 

Thus, there is no evidence of actual knowledge to refute Junkin’s asserted lack of awareness 

of West Alabama’s responsibility for the conduct of contract employees. 

Lacking actual notice, the focus shifts to the validity of Junkin’s claim that he believed 

that West Alabama was not responsible for contractor employee conduct. Examining the 

sincerity of Junkin’s claim requires considering whether it is reasonable and whether it has been 

made in good faith. This test contains the subjective element of whether Junkin’s claim can be 

viewed as an honest belief, as well as satisfaction of the objective requirement that Junkin’s 

belief is reasonable. I.O. Coal, 31 FMSHRC 1346, 1357-58 (Dec. 2009) (noting that a defense 

against an unwarrantable failure designation requires not only a finding of good faith but also a 

finding that the belief was reasonable under the circumstances); see also Bryce Dolan v. F & E 

Erection Co., 22 FMSHRC 171, 177 fn. 7, (Feb. 2000), citing Sec’y of Labor o/b/o Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 810 (Apr. 1981). The absence of a relevant history of 

citations issued for fall protection violations committed by contractor truck operators, who 

undoubtedly routinely secure loads at West Alabama’s mine facility, adequately supports a good 

faith claim. So too, the absence of relevant previous citations provides a reasonable basis for 

Junkin’s belief that West Alabama was not responsible for the acts of truck operators it did not 

employ on equipment it did not own. 

Thus, Junkin’s reasonable and apparent good faith belief, albeit wrong, that 

West Alabama was not responsible for Koger’s failure to use fall protection is an appropriate 

mitigating factor that reduces the degree of negligence under the threshold required for an 

unwarrantable failure. Consequently 104(d)(1) Citation No. 6511548 shall be modified to a 

104(a) citation by deleting the unwarrantable failure charge to reflect that the degree of 

negligence attributable to the violation was no more than moderate. 

34 FMSHRC Page 1655
Turning to the remaining issue of the appropriate civil penalty, the Mine Act requires 

that, “[in assessing civil monetary penalties, the Commission [ALJ] shall consider” the following 

six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the 

operator was negligent, [4] the effect of the operator’s ability to continue in 

business, [5] the gravity of the violations, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 U.S.C. § 820(i). 

With respect to the relevant violation history, West Alabama was issued 17 citations 

during the 24-month period from June 30, 2007, through June 30, 2009, the 24-month period 

preceding the subject citation. Sec’y Resp. Br, Gov. Ex. 7. Of these 17 citations 14 were 

designated as non-significant and substantial. Id. The penalty range proposed by the Secretary 

for each of the 17 citations was from $100.00 to $425.00. Id. Thus, it is clear that the history 

of violations is not an aggravating factor. West Alabama Sand is a relatively small operator, 

and, the civil penalty imposed in this matter will not affect its ability to continue in business. 

As noted above, the negligence attributed to the mine operator is no more than moderate and 

West Alabama has provided a sign to deter further violations by contract employees on its mine 

property. In consideration of the appropriate civil penalty criteria in section 110(i) of the Act, a 

civil penalty of $760.00 shall be imposed for 104(a) Citation No. 6511548.6 

6

 The Commission has held that “findings of fact on the statutory penalty criteria must be 

made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on 

the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an 

exercise of discretion, which is bounded by proper consideration for the statutory criteria and the 

deterrent purposes of the Act. Id. At 294, Canera Green, 22 FMSHRC 616, 620 (May 2000). 

The Commission has noted that the de novo assessment of civil penalties does not require “that 

equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal 

Co., 19 FMSHRC 1495, 1503 (Sept. 1997). The penalty criteria in section 110(i) of the Act 

include consideration of the degree of negligence and the appropriateness of the civil penalty to 

the size of the business. The significant reduction in civil penalty primarily is based on the 

reduction in the degree of negligence attributable to West Alabama and the relatively small size 

of its business. 

34 FMSHRC Page 1656
 

ORDER 

In view of the above, the Secretary’s motion for summary decision on the fact of the 

violation and S&S IS GRANTED. West Alabama’s motion for summary decision with respect 

to the question of unwarrantable failure IS GRANTED. Consequently, 104(d)(1) Citation No. 

6511548 is modified to a 104(a) citation to reflect that the citation was not the result of an 

unwarrantable failure. 

Consistent with the application of the penalty criteria to the facts of this case, 

IT IS ORDERED that West Alabama Sand shall pay a civil penalty of $760.00 within 

40 days of the date of this decision. Upon timely payment of the $760.00 civil penalty, 

the captioned civil penalty IS DISMISSED. 

/s/ Jerold Feldman 

 Jerold Feldman 

Administrative Law Judge 

Distribution: (Certified Mail) 

Sophia Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW, 

Atlanta, GA 30303 

Clatus Junkin, Esq., Pearson, Harrison, Junkin & Pate, LLC, 202 3rd Street NE, P.O. Box 730, 

Fayette, AL 35555 

/jel 

34 FMSHRC Page 1657
 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

July 23, 2012 

SECRETARY OF LABOR, : 

MSHA, on behalf of : 

DUSTIN FLENER, : 

Applicant : 

: 

v. : 

: 

ARMSTRONG COAL COMPANY, INC., : 

 And ARMSTRONG FABRICATORS, INC. : 

Respondents : 

: 

SECRETARY OF LABOR, : 

MSHA, on behalf of : 

 JARRED B. ADAMS : 

Applicant : 

: 

v. : 

: 

ARMSTRONG COAL COMPANY, INC., : 

 And ARMSTRONG FABRICATORS, INC. : 

Respondents : 

: 

SECRETARY OF LABOR, : 

MSHA, on behalf of : 

RONNIE BURDEN, : 

Applicant : 

: 

v. : 

: 

ARMSTRONG COAL COMPANY, INC., : 

 And ARMSTRONG FABRICATORS, INC. : 

Respondents : 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2012-1157-D 

MADI-CD-2012-11 

Mine ID No. 15-19356 

Parkway Mine Surface Facilities 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2012-1158-D 

MADI-CD-2012-12 

Mine ID No. 15-19356 

Parkway Mine Surface Facilities 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2012-1250-D 

MADI-CD-2012-13 

Mine ID No. 15-19356 

Parkway Mine Surface Facilities 

DECISION AND ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Matt S. Shepard, Angele Gregory, Office of the Solicitor, U.S. Department of 

Labor, Nashville, Tennessee for the Applicants; 

Tony Oppegard, Lexington, Kentucky for the Applicants; 

Wes Addington, Whitesburg, Kentucky for the Applicants; 

Adam K. Spease, Alex L. Scutchfield, Miller Wells PLLC, Louisville, Kentucky 

for the Respondents; 

34 FMSHRC Page 1658
Daniel Z. Zaluski, Armstrong Coal Company Inc., Madisonville, Kentucky for the 

Respondents. 

Before: Judge Simonton 

I. INTRODUCTION 

These cases are before me on applications for temporary reinstatement filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc., hereinafter referred to 

jointly as Respondents, pursuant to section 105(c) (2) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c) (2) (“Act” or “Mine Act”). On June 15, 2012, pursuant to 29 C.F.R. 

§ 2700.45(c), Respondents requested a hearing on these matters. On June 18, 2012, a 

preliminary status conference was held wherein all parties stipulated to a brief extension to allow 

for scheduling a hearing outside the 10-day window required under 29 C.F.R. § 2700.45(c). A 

hearing was conducted on July 6, 2012, in Madisonville, Kentucky. The record closed on July 

13, 2012, after allowing for submission of post-hearing briefs. 

II. ANALYSIS AND FINDINGS 

i. Background 

The parties stipulated to the following facts: 

Armstrong Coal Company, Inc. is an “operator” as defined in Section 3(d) of the Mine 

Act. Respondent’s operations affect interstate commerce. As such, Respondent is subject to the 

jurisdiction of the Mine Act, and the presiding Administrative Law Judge has the authority to 

hear and issue a decision regarding these cases. 

In the event it is determined that temporary reinstatement is appropriate relief to be 

ordered in these cases, and that the right to such relief is not tolled, such relief may be ordered 

against Respondents jointly. Respondents agreed to this stipulation for the sole purpose of this 

temporary reinstatement proceeding only and to avoid the time and expense of fact-finding on 

this issue at the hearing in this matter. Respondents reserve the right to challenge Mine Act or 

MSHA jurisdiction over Armstrong Fabricators, Inc., at any subsequent hearing on the merits of 

the Applicants' claims or in any other proceeding or for any other purpose. 

During the hearing, the parties also agreed to stipulate that, for purposes of the hearing, 

Applicants Dustin Flener, Jarred Adams, and Ronnie Burden are “miners” as defined by the 

Mine Act. Respondents reserved the right to challenge that designation at any subsequent 

hearing on the merits of the Applicants’ claims or in any other proceeding or for any other 

purpose. 

34 FMSHRC Page 1659
Unless otherwise specified the following facts are undisputed: 

Applicants Jarred Adams, Dustin Flener and Ronnie Burden, hereinafter referred to 

jointly as Applicants, were employed by Respondents. Tr. 108, 137 and 155-56. Flener and 

Adams worked as welders at the fabrication shop, which was located at Armstrong’s Parkway 

Mine Surface Facilities. Tr. 108, 137. The men welded equipment, such as draglines, blades, 

and buckets, used by Armstrong Coal Company in their surface and underground mines. Tr. 

111-12, 139-140. The men always reported to the fabrication shop on workdays, but several 

times a week they would travel to work on-site at Armstrong Coal Company’s mines. Tr. 111-

14, 140-41. Burden worked as an electrician in the electrical shop, which was located behind the 

fabrication shop at Parkway. Tr. 155-60. His job involved repairing and testing transformers, 

working on substations, and collecting samples of transformer oil to submit for testing by a local 

lab. Id. 

In January 2012, another fabrication shop employee, Reuben Shemwell, filed a 

discrimination complaint against Respondents. Tr. 48. Shemwell alleged that he was 

terminated, in part, because of safety complaints he made about the type of respirators being 

used at the shop. Tr. 48-50. Prior to that complaint, MSHA had not been conducting regular 

E01 inspections of the fabrication shop. Tr.50. Vice President of Operations Kenny Allen 

explained that when Respondent Armstrong Coal Company, Inc., purchased the Parkway Mine 

the company took steps that it believed would insulate the shop from MSHA jurisdiction and 

eliminate the need to maintain the shop to “MSHA standards.” Tr. 255. Following the filing of 

Shemwell’s discrimination complaint, however, MSHA attempted to assert jurisdiction over the 

fabrication and electrical shops. Tr. 48-50. 

On February 23, 2012, MSHA inspectors Eddie Nichols and Gene Wright reported to the 

fabrication shop to conduct an E01 inspection. Tr. 74. Nichols testified that they initially met 

with Safety Manager Rick Brothers and advised him that they were there to conduct an 

inspection. Tr. 77. Brothers said that Armstrong opposed the inspection and would send the 

workers home if MSHA continued with the inspection. Id. Nichols then called MSHA’s District 

Office to find out what actions the inspectors should take. Tr. 78-79. Nichols’ supervisor said 

that he would get an answer and call back. Id. 

While Nichols waited for a return phone call, the miners working at the fabrication shop 

were sent home. Tr. 80. Inspector Nichols saw the workers leave the shop, and Adams and 

Burden both testified that they were sent home on February 23rd when MSHA arrived. Id., Tr. 

117, 174. Burden recalled being in the break room when Shop Foreman Oscar Ramsey came in 

and told them that MSHA had “showed up” and they should “get their stuff and go home.” Tr. 

174. 

During the wait, Brothers received a phone call from Dan Zaluski, Respondent’s 

corporate counsel. Nichols testified that he also spoke to Zaluski, who said that he didn’t 

understand why MSHA was there to inspect but it must be in reference to the 105(c) complaint. 

Tr. 80. Zaluski then said that he would allow the inspection but opposed it. Id. However, 

Inspectors Nichols and Wright were instructed by their supervisors to return to the district office, 

and they did not conduct an inspection on February 23rd. Id. 

34 FMSHRC Page 1660
The following day, February 24, 2012, a meeting was called at the fabrication shop. 

Several members of Armstrong management were present at the meeting, including Kenny Allen 

and Oscar Ramsey. Applicant Burden testified that during the meeting Allen said that someone 

had called in, there had been a citation and that if MSHA showed back up Armstrong was going 

to close the shop down and outsource everything. Tr. 176. Burden further explained that Allen 

made it “pretty clear” that if MSHA showed up again at the fabrication shop, the men would not 

have a job. Tr.177-178. Allen testified that he told the men at the meeting if MSHA asserted its 

jurisdiction over the shop the company would be forced to close it for economic reasons. Tr. 

250-51. 

On February 27, 2012, MSHA received the following anonymous complaint about 

Parkway Mine Surface Facilities: “The mine is dumping the contents of transformers on the 

ground around the shop building.” Applicants’ Ex. 2. Supervisory Special Investigator Kirby 

Smith explained that the complaint was cause for concern due to the potential for PCBs in the 

spilled oil. Tr. 56. PCBs are dangerous, cancer-causing agents often found in oil that was used 

in older transformers. Id. Applicant Adams testified he previously had asked supervisors Oscar 

Ramsey and Terry Fulkerson about the possibility of PCBs being present in the oil of some of 

the transformers onsite because he was concerned about him and his men working on them. Tr. 

124. He was told by Fulkerson that all the transformers had been tested and “they were on file.” 

Id. Applicant Burden testified that he had knowledge of oil being spilled at the shop during the 

time he worked there and that he discussed the oil spills with Supervisor Ramsey. Tr. 169-170. 

Specifically, Burden recalled once receiving a phone call about a transformer being struck and 

oil spilling from it. Tr. 168. He told a co-worker to contact Oscar Ramsey about the spill. Id. 

In addition, he approached Ramsey about oil leaking from transformers stored on a skid behind 

the shop. Burden explained that between 300 and 400 transformers were stored on concrete pads 

behind the shop, and he voiced his concern about oil leaking from them. Tr. 169-70. Burden 

explained that any transformer that is not in use should be tested and should bear a sticker that 

says “Non-PCB.” Tr. 166-67. He recalled that there were transformers on the skid that did not 

bear a “Non-PCB sticker.” Id. Although he confronted Ramsey, to his knowledge, no action 

was taken. Tr. 170. 

Applicant Flener testified he and a coworker, Ben Bowers, had concerns about potential 

exposure to PCBs after draining the oil out of a transformer. Tr. 145-46. Flener was present 

when Bowers asked Supervisor Fulkerson if the oil had been tested for PCBs. Tr. 146. 

Fulkerson told them the transformers had all been tested. Id. Ramsey, on cross examination, 

acknowledged his awareness that Flener is “kin” to Reuben Shemwell, the Complainant in the 

precursor discrimination case. Tr. 220. 

On February 28, 2012, Inspectors Ray Cartwright and Louis Adams arrived at the 

fabrication shop to investigate the anonymous complaint. Tr. 90; Gov’t Ex. 2. They first met 

with Supervisor Ramsey and told him the purpose for their visit. Tr.92. They then provided him 

with a copy of the complaint, and Ramsey responded that the investigation would have to be 

conducted “under protest.” Gov’t Ex. 1; Tr. 93. Within minutes, Manager of Surface Safety 

Richard Hicks arrived and told the inspectors he had spoken with Kenny Allen and that Allen 

told him to oppose the inspection. Tr. 96. 

34 FMSHRC Page 1661
Inspector Cartwright explained to Hicks that they were not there to conduct an inspection 

of the shop but to walk around the back of the shop to investigate the complaint regarding oil 

spillage. Tr. 95. They also provided Hicks with a copy of the complaint. Id. Hicks then took a 

phone call from Kenny Allen. Tr. 97. When Hicks got off the phone, he advised Inspectors 

Cartwright and Adams that Allen had just given orders to turn off the lights, lock the doors, and 

send everyone home. Tr. 98. In his testimony, Kenny Allen confirmed that he gave those 

instructions after learning that the MSHA inspectors were at the shop to investigate a complaint. 

Tr. 252. 

All of the shop workers were then called together by Ramsey, who told them that they 

were laid off “indefinitely.” Tr. 121. Jarred Adams recalled Ramsey saying in a phone 

conversation with him later that day that Kenny Allen was “pulling the plug on the shop.” Tr. 

122. Ronnie Burden recalled that the men were told to “get their stuff,” file for unemployment, 

and get a job application if they wanted to reapply with Armstrong. Tr. 178-179. Flener, who 

was not working on February 28th, phoned Ramsey to find out what was going on and was told 

that he had been laid off. Tr. 142-43. On March 16, 2012, Flener contacted John Bruce, the 

Superintendent of Surface Operations, to ask why the shop workers had been laid off. Tr. 144. 

Bruce told Flener, he had “MSHA to thank for coming out and closing the shop down.” 

Both Ramsey and Allen testified they had discussions when the shop opened back in 

2008 or 2009 that if MSHA ever tried to exert jurisdiction over the shop it would not be 

economically feasible to keep the shop open. Tr 202, 235, 265-66. In addition, they had no idea 

who filed the anonymous complaint, nor did they have any reason to believe it was Applicants 

Adams, Flener or Burden. Tr. 205, 207, 210, 211, 212, 256-58. Ramsey confirmed that an oil 

spill had occurred several years ago and they had a local environmental engineering firm, 

Associated Engineers, clean up the area. Tr. 216. He avowed that the material that was spilled 

did not contain PCBs. Id. 

ii. Applicable Law 

Section 105(c)(1) of the Mine Act provides that no person shall discharge or otherwise 

discriminate against a miner for exercising rights under the Act. 

It states in pertinent part: 

No person shall discharge or in any manner discriminate against . . 

. or otherwise interfere with the exercise of the statutory rights of 

any miner . . . because such miner . . . has filed or made a 

complaint under or related to this Act, including a complaint 

notifying the operator or the operator’s agent . . . of an alleged 

danger or safety or health violation in a coal or other mine. 

30 U.S.C. § 815(c)(1)(Emphasis provided by the Commission in Moses v. Whitley Development 

Corp., 4 FMSHRC 1475, 1478 (Aug. 1982)). 

34 FMSHRC Page 1662
Pursuant to 105(c)(1), if the Secretary finds that [a discrimination] complaint was not 

frivolously brought, the Commission, on an expedited basis upon application of the Secretary, 

shall order the reinstatement of the miner pending final order on the complaint. 30 U.S.C. § 

815(c)(1). The Commission has noted that the parameters of a temporary reinstatement hearing 

are narrow, being limited to a determination with respect to whether a miner’s discrimination 

complaint has been frivolously brought. See Sec’y of Labor o/b/o Price v. Jim Walter Res., Inc., 

9 FMSHRC 1305, 1306 (Aug. 1987), aff’d., 920 F. 2d 738 (11th Cir. 1990). Accordingly, it is 

only necessary to determine whether the Applicants’ complaints appear to have merit. 

(Emphasis added). See S. Rep. No. 181, at 36 (1977), reprinted in Senate Subcomm. on Labor, 

Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, 

94th Cong., 2d Sess., at 624 (1978). In Jim Walter Resources, Inc. v. FMSHRC, the Eleventh 

Circuit found the “not frivolously brought” standard comparable to a “reasonable cause to 

believe” standard. Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). The 

Eleventh Circuit concluded that the low burden imposed by the “not frivolously brought” 

standard reflects clear Congressional intent to make temporary reinstatement relatively easy to 

obtain. Id. at 748. 

The Commission has consistently and historically found that Congress intended section 

105(c) to be broadly construed to afford maximum protection for miners exercising their rights 

under the Act. See Sec’y of Labor o/b/o Charles H. Dixon et. al. v. Pontiki Coal Corp., 19 

FMSHRC 1009, 1017 (June 1997) citing Swift v. Consolidation Coal Co., 16 FMSHRC 201, 212 

(Feb. 1994) (“the anti-discrimination section should be construed ‘expansively to assure that 

miners will not be inhibited in any way in exercising any rights afforded by the 

legislation.’”)(quoting S. Rep. No. 181, at 36 (1977), reprinted in Senate Subcomm. on Labor, 

Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, 

94th Cong., 2d Sess., at 624 (1978) (emphasis added)). 

Although the Secretary is not required to present a prima facie case in a temporary 

reinstatement proceeding the Commission has determined it useful to review the elements of a 

discrimination claim in order to assess whether the evidence at this stage of the proceedings 

meets the non-frivolous test. Sec’y of Labor o/b/o Williamson v. CAM Mining, LLC, 31 

FMSHRC 1085 (Oct. 2009). In order to establish a prima facie case under Section 105(c), a 

miner must show: (1) that he engaged in a protected activity; and (2) that his termination was 

motivated, at least in part, by the protected activity. See Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2799 (Oct. 1980). 

The Commission has held that evidence of motivation may be shown by circumstantial 

evidence. See, e.g., Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11 (Nov. 1981), 

rev'd on other grounds sub nom., Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983) 

(holding that illegal motive may be established if the facts support a reasonable inference of 

discriminatory intent); Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 (Jan. 1984). 

Circumstantial indicia of discriminatory intent by a mine operator against a complaining miner 

include: (1) knowledge by the operator of the protected activity, (2) hostility toward the miner 

because of his protected activity, (3) coincidence in time between the protected activity and the 

adverse action, and (4) disparate treatment of the complaining miner. Jungers v. Borax, 15 

FMSHRC 300, 308 (Feb. 1993). 

34 FMSHRC Page 1663
                                                            

iii. The Solicitor Has Met Her Burden of Proof to Establish a Non-Frivolous Allegation 

As far as I have been able to determine, the cases before me present a novel question of 

law, i.e., is it necessary for a specific miner subject to adverse action to be identified in an 

anonymous health and safety complaint in order to meet the non-frivolous temporary 

reinstatement standard? For the following reasons I find that in order to preserve the spirit and 

intent of the law protecting miners from unlawful reprisal the answer can and must be a 

resounding, “No”. 

Here, it is undisputed that in January 2012, former employee Shemwell filed a 

discrimination complaint against the Respondents after he was removed from employment.1 On 

February 23, 2012, MSHA attempted to conduct an inspection of the fabrication shop where 

Shemwell and the Applicants worked. This was the first time since Respondents began 

operating the shop that MSHA had attempted to conduct an inspection there. Supervisory 

Special Investigator Kirby Smith testified MSHA’s actions were prompted by Shemwell’s 

discrimination complaint and the health and safety issue raised by Shemwell regarding 

respirators used at the shop. Tr. 48-50. The evidence also suggests that is what Respondent 

believed. See Inspector Nichol’s unrebutted testimony that Respondent’s attorney Zaluski stated 

to him that the inspection must have been prompted by Shemwell’s 105(c) complaint. Tr. 80. 

Respondent’s reaction to the attempted inspection was to shut off the power and send the 

employees home for the day in order to avoid the potential liability that might arise from 

MSHA’s inspection. Respondent’s Vice President of Operations Allen made that clear in his 

testimony. Tr. 248. 

The following day, February 24, 2012, Allen called a meeting with the shop employees 

and expressly told them that if MSHA returned to exercise jurisdiction over the shop they would 

shut it down because it would be economically unfeasible to operate. There is no question those 

employees knew after that meeting that any complaints about health and safety issues prompting 

an MSHA inspection would lead to a permanent closure of the shop and loss of their jobs. I can 

think of nothing more chilling on an employee’s inclination to report possible health and safety 

issues than the threat imposed on them by Allen at that meeting, whether he intended it that way 

or not. 

Three days after the meeting, February 27, 2012, an anonymous complaint that “the mine 

is dumping the contents of transformers on the ground around the shop building” was received 

by MSHA on its hotline. In response, MSHA inspectors returned to the shop the next day, 

February 28, 2012, to conduct an inspection. True to his February 24th threat Allen, that very 

day, ordered the shop closed. All three applicants along with eight other miners lost their jobs. 

Facially, the undisputed facts regarding Respondent’s resistance to MSHA jurisdiction and their 

response to the exercise of that jurisdiction based on protected activity (Shemwell’s articulated 

1 In a June 21, 2012, decision Judge Feldman ordered Respondents to temporarily 

reinstate Shemwell. Secretary of Labor o/b/o Reuben Shemwell v. Armstrong Coal Co., et al., 

Docket No. KENT 2012-655-D. The Commission affirmed Judge Feldman’s decision on July 

12, 2012. Id. 

34 FMSHRC Page 1664
respirator concerns and the anonymous oil dumping complaint) clearly meets the minimal nonfrivolous burden required of the Applicants in these cases. 

What is left then is the Respondents’ argument that there is no evidence Applicants 

Adams, Flener or Burden actually engaged in protected activity; thus they fail to meet the 

statutory requirement of Section 105(c)(1) and the prima facie elements of a discrimination case. 

This is a more difficult question and one which appears to be of first impression for the 

Commission. Critical to my analysis is the fact that the proceeding before me involves 

applications for temporary reinstatement which, as noted above, require a minimal showing that 

the miners’ discrimination complaints are non-frivolous. As Respondents point out in their posthearing brief the Applicants must demonstrate that their complaints “appear to have merit,” i.e., 

that there is reasonable cause to believe that the miner was discriminated against in part due to 

protected activity in which he has engaged. Sec’y of Labor v. Centralia Mining Co., 22 

FMSHRC 153, 157 (Feb. 2000); CAM Mining at 1088. 

The Commission clearly recognized in Moses that a violation of 105(c)(1) could be found 

based on a suspicion that the miner had reported to MSHA an accident which led to an MSHA 

investigation. Specifically, it stated: 

Section 105(c)(1) was intended to “be construed expansively to 

assure that miners will not be inhibited in any way in exercising 

any rights afforded by the Act. Miners would be less likely to 

exercise their rights if no remedy existed for discriminatory action 

based on an operator’s mistaken belief that a miner had exercised a 

protected right. . . . An equally important consideration is that an 

affected miner suffers as much by mistake as he would if he were 

discriminated against because he had actually engaged in protected 

activity. We conclude that discrimination based upon a suspicion 

or belief that a miner has engaged in protected activity, even 

though, in fact, he has not, is proscribed by section 105(c)(1). 

Moses, 4 FMSHRC at 1480; see also Sec’y of Labor on behalf of Dixon, et al. v. Pontiki Coal 

Corp., 19 FMSHRC 1009 (June 1997) (finding that the Secretary has the authority to bring a 

105(c) complaint on behalf of all miners affected by alleged discriminatory conduct); Sec’y of 

Labor on behalf of Green v. D&C Mining Corp., 33 FMSHRC 243 (Jan. 2011) (ALJ) (holding 

that Respondent violated section 105(c) by discriminating against Applicants for the mistaken 

belief that they had called MSHA inspectors to the mine). 

Further, in another 105(c) case, Sec’y of Labor on behalf of Caudill v. Leeco, Inc. and 

Blue Diamond Coal Co., 24 FMSHRC 589 (May 2002) (ALJ), Judge Zielinski rejected 

Respondent’s argument that the protected activity must be that of the miner complaining of 

adverse action. The judge held that Caudill’s allegation that he suffered adverse action as a 

result of the protected activity of his father stated a cause of action under section 105(c). The 

judge rejected Respondent’s reliance on Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3rd Cir. 

2002), and rejected the same attempt as that made in the instant case to analogize 105(c) to 

discrimination cases filed under the ADA or ADEA. The judge found that a strict literal 

34 FMSHRC Page 1665
                                                            

interpretation of section 105(c)(1) would be inconsistent with the legislation’s purpose and that 

“refusing to allow Jimmy Caudill’s claim of retaliation based upon protected activity by his 

father would nullify some of the most important protections intended by Congress.” Caudill, at 

591. While I am not bound by Judge Zielinski’s decision I find it supportive of the concept that 

rejects a strict reading and interpretation of 105(c) which would require that the complaining 

miner be the only individual who is protected from reprisal for complaining about a health and 

safety concern. 

Here, the Solicitor proffered evidence that Adams cooperated in the Shemwell 

investigation by providing a statement to MSHA Special Investigator Kirby Smith on February 

6, 2012, with Respondent’s attorney present.2Tr. 116-17. Furthermore, both Adams and Burden 

testified they expressed concerns to Respondent’s management officials, Supervisors Ramsey 

and/or Fulkerson about the presence of PCBs in oil used in on-site transformers. Tr. 124, 168-

70.Flener and coworker Ben Bowers had concerns about potential exposure to PCBs after 

draining the oil out of a transformer. Tr. 145-46.Flener was present when Bowers asked 

Fulkerson if the oil had been tested for PCBs. Tr. 146. Fulkerson told them the transformers had 

all been tested. Id. Further, Ramsey, on cross examination, acknowledged his awareness that 

Flener is “kin” to Reuben Shemwell, the Complainant in the precursor to the instant 

discrimination cases. Tr. 220. All of this evidence provides a basis for concluding that 

management could have reasonably suspected that any of the Applicants called in the 

anonymous complaint which triggered the MSHA inspection and layoff of the shop employees 

on February 28, 2012.3 

The fact of the matter remains that, if Respondents are to believed, they had no 

inclination or suspicion as to who made the anonymous complaint. That is precisely the point 

and the vexing problem these cases present. It appears that, rather than pinpoint one miner for 

retribution, the Respondents, in response to the anonymous complaint and MSHA’s February 28, 

2012, inspection to investigate the complaint, took it upon themselves to punish everyone by 

closing the facility and remove the livelihood of all 11 shop employees. Allowing Respondents 

to escape a test of the merits of these Applicants’ cases by finding their complaints to be 

frivolous would do nothing more than thwart the very purpose of the 105(c) non-retaliation 

provisions Congress enacted. Worse yet, it would invite every operator to take action against 

entire groups of miners when anonymous complaints are brought forth to MSHA, only to claim 

2 Respondent argues in its post-hearing brief that there is a lack of temporal proximity 

between Adam’s participation in the MSHA investigation on February 6, 2012, and his layoff on 

February 28, 2012. This argument is best preserved for the case on the merits. I find it sufficient 

given the minimal burden of demonstrating a non-frivolous complaint in a temporary 

reinstatement proceeding to conclude Adam’s participation reasonably could have led 

Respondents to suspect he made the anonymous complaint on February 27, 2012.

3

 To the extent that Respondent cries foul and objects to reliance on this evidence I would 

point out that our discussions during the prehearing regarding scope of evidence relate to that 

which would tend to support any inference that Respondent suspected that any one of the 

Complainant’s may have lodged the anonymous complaint not to establish separate and 

independent claims of protected activity. Such evidence however, may be relevant for those 

purposes in the merits based cases which may follow. 

34 FMSHRC Page 1666
 

they had no idea who filed the complaint so no individual protected activity could be found and 

thus, escape liability entirely for what could be unmitigated reprisal for reporting health and 

safety concerns. As a matter of public policy this cannot be what Congress intended when it 

passed the non-retaliation provisions of the Mine Act. 

Unrefuted evidence presented at hearing shows that at a minimum Supervisor Ramsey 

and Manager of Surface Safety Richard Hicks were aware of the February 27, 2012, anonymous 

complaint when Respondents took action to close the fabrication shop on February 28, 2012, 

because a copy of it was handed to them by MSHA Inspector Louie Adams. Vice President of 

Operations Allen’s testimony alone unequivocally establishes he never wanted MSHA at the 

shop and, as soon as MSHA appeared to conduct an inspection Allen, immediately shut the shop 

down and laid off 11 miners demonstrating hostility or animus toward the protected activity and 

by extension any miner who may have engaged in the activity. Finally, temporal proximity of a 

single day between the anonymous complaint and the layoff has been unequivocally established. 

Such evidence is sufficient to find the Applicants claims non-frivolous. 

iv. Respondents’ Economic Feasibility Argument 

The Respondents argue that reinstatement of the Applicants is barred because the 

February 28, 2012, layoff was conducted for bona fide economic reasons. They presented the 

same argument to Judge Feldman in Sec’y of Labor o/b/o Reuben Shemwell v. Armstrong Coal 

Co., Inc., et al., Docket No. KENT 2012-655-D. Judge Feldman rejected their argument as did 

the Commission on appeal. Because this issue has already been decided by the Commission I 

find it unnecessary to address it in this decision. 

III. DECISION AND ORDER 

For all of the reasons articulated above I find that the Applicants presented sufficient 

evidence at hearing to render their discrimination complaints non-frivolous. Accordingly, IT IS 

ORDERED that Respondents Armstrong Coal Company, Inc., and/or Armstrong Fabricators, 

Inc., immediately reinstate the Applicants Jarred Adams, Dustin Flener and Ronnie Burden, no 

later than Monday, July 30, 2012, to the positions they held immediately prior to the February 

28, 2012, layoff, or to similar positions at the same rate of pay and benefits and with the same or 

equivalent duties assigned. 

IT IS FURTHER ORDERED that Respondents Armstrong Coal Company, Inc., and/or 

Armstrong Fabricators, Inc., provide back pay and relevant benefits, less deductions for taxes 

and any other appropriate payroll deductions, to the Applicants Adams, Flener and Burden 

effective February 28, 2012, until the date preceding their reinstatement. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

34 FMSHRC Page 1667
Distribution:
 

Angele Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Matt Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

Adam Spease, Esq., Alex Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street, 4th 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

/atc
 

230, Nashville, TN 37219-2456 

Floor, Louisville, KY 40202 

Tony Oppegard, Esq., P.O. Box 22446. Lexington, Kentucky 40522 

Dan Zaluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431 

41858 

34 FMSHRC Page 1668
 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

July 23, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), :

 Petitioner, : Docket No. VA 2009-211 

: A.C. No. 44-04856-178738 

 v. : 

: Buchanan Mine #1 

CONSOLIDATION COAL CO., :

 Respondent. : 

DECISION 

Appearances: Angele Gregory, Esq., and Elizabeth Friary, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for Petitioner; 

Billy R. Shelton, Esq., Jones, Walter, Turner & Shelton, Lexington, Kentucky, 

for Respondent 

Before: Judge Tureck 

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary 

of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), 

against Consolidation Coal Company (“Consol”), pursuant to Sections 105 and 110 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“the Act”). The 

Secretary proposes assessing penalties against Consol totaling $199,300 for five alleged 

violations of mandatory safety standards at Consol’s Buchanan #1 coal mine (“Buc1”). The 

Secretary contends that each of these violations was significant and substantial, involved high 

negligence, and was an unwarrantable failure to comply with mandatory standards. Consol 

challenges both the occurrence of the violations and the severity of the assessed penalties. 

34 FMSHRC Page 1669
 

A formal hearing was held in Jonesborough, Tennessee on July 12 and 13, 2011. At the 

hearing, Government Exhibits 1-10 and 12, and Respondent’s Exhibits 1-5, were admitted into 

evidence,1 and each party provided testamentary evidence. At the conclusion of the hearing, a 

deadline of September 13 was set for the parties to file briefs. That deadline was subsequently 

extended by 30 days. On October 3, the Secretary’s Motion to Amend Petition for Assessment of 

Penalty was filed. That motion sought to amend Order No. 8157102 to change the safety 

standard allegedly violated from 30 C.F.R. §75.1103-3 to §75-1100.1(a). Respondent opposed 

the motion, and I denied it by order issued on October 18, 2011. Both parties then filed 

post-hearing briefs and reply briefs, the last of which was received on November 14. 

Findings of Fact and Conclusions of Law 

At the start of the hearing, the parties stipulated that: Consol is subject to the Act and 

the jurisdiction of the Federal Mine Safety and Health Review Commission; Consol and Buc 1 

are engaged in interstate commerce; Consol is an operator under the Act, and Buc 1 is a coal 

mine; the imposition of the proposed assessed penalties will not affect Consol’s ability to stay in 

business; Consol is a large operator; and the citations were properly served. TR12, at 6-7. 

Buc 1 is a very large, deep underground coal mine located in Southwest Virginia. It has 

been in operation since 1984. TR13, at 25. It employs about 700 miners and generally operates 

24 hours a day on three shifts: 7:30 a.m. - 3:30 p.m. (the day shift); 3:30 p.m. - 11:30 p.m. (the 

evening shift); and 11:30 p.m. - 7:30 a.m. (the owl shift). There are 16 miles of beltline in Buc 1. 

TR 12, at 167. As an underground mine, Buc 1 is subject to quarterly inspections by MSHA’s 

coal mine inspectors. Due to its size, these quarterly inspections of Buc 1 generally take the full 

quarter to complete, at which time the next quarterly inspection begins. TR12, at 29-30. 

Accordingly, MSHA inspectors are in the mine almost all the time. Id. at 122. 

Citation 8157100; Orders 8157101, 8157102 

On July 2, 2008, MSHA coal mine inspector John Hughes arrived at Buc 1 at 9:00 a.m. 

TR 12, at 43. Hughes has been an MSHA coal mine inspector since 2005. Id. at 27. His last jobs 

prior to coming to work for MSHA were pre-shift examiner and then section foreman for 

Massey. Id. at 22-23. He never worked at a mine with a longwall, and Buc 1 is the only mine he 

has inspected with a longwall. Id. at 113, 116. Hughes was at Buc 1 on July 2 to follow up on a 

citation he issued the previous day regarding a leak in a water line. Id. at 45-46; RX 2, at 44. He 

was accompanied on his inspection by Dave Lambert, Respondent’s shift foreman on the Page 

1 Citations to the record of this proceeding will be abbreviated as follows: GX – 

Government’s Exhibit; RX – Respondent’s Exhibit; TR12 – July 12 Hearing Transcript; TR13 – 

July 13 Hearing Transcript. 

34 FMSHRC Page 1670
 

 

side.2 Hughes testified that when he arrived at the mine, Lambert informed him that the water 

line was down. Id. at 46. However, his inspection notes indicate that Lambert did not inform him 

that the water was off until 11:00 a.m. GX 6, at 8. Since he could not close the citation he had 

issued the previous day until the water line was back up, Hughes decided to pass the time by 

inspecting some mine equipment and taking some air readings. Id. Then he and Lambert went to 

the control room, a very small room with monitors displaying, among other things, whether the 

belts are moving. Id. at 51-52. Hughes observed that the tripper conveyor belt, which transports 

coal to the Grassy Bunker, a storage area for coal before it is brought to the surface, was 

operating. Id. at 52. Since the water line there was down, he believed that if a fire occurred on 

the belts there would be no way to put it out. Id. at 53. However, he did not believe that this 

situation presented “a real fire hazard or imminent danger type situation . . . .” TR12, at 56. So 

instead of going right to the tripper belt to abate the problem, he went to the number 2 vent to 

obtain air readings. Id. He explained that this got them closer to the area by the Grassy Bunker 

without tipping his hand that he suspected a violation was occurring. Id. at 54-55. He believed 

that if the miners knew he suspected there was an ongoing violation, it would be corrected before 

he could witness it taking place. Id. at 55-56. 

When Hughes and Lambert arrived at the belt line, a little less than an hour after they left 

the control room (TR12, at 249), the tripper belt was not running. TR12 at 61. If that belt was not 

operating, production at the mine had to be reduced because all the mined coal had to be sent to 

the main line; it could not go to the Grassy Bunker for underground storage. TR 12 at 215-16. 

Hughes testified that he observed that that the belt rollers had frozen in place (id. at 88), a 

determination he made solely through a visual inspection of the rollers. Id. at 158-59. He did not 

touch the rollers, nor did he see them while the belt was operating. Id. at 93, 159. But he stated 

that the rollers were so eroded away that they could not turn. Id. at 159-60, 169. Further, he 

stated that virtually the entire belt rollers located within 70 feet of the tripper conveyor belt tail 

piece was severely flattened. Id. at 88. He stated that the moving conveyor belt dragging across 

the stuck rollers created heat and friction, a potential fire hazard. They also cause coal fines to 

build up on the rollers, which could serve as a fuel source in the event of a fire. Nevertheless, 

despite that there were probably over 50 rollers within this 70 foot length of belt,3 and that he 

found virtually all of them to be severely flattened, Hughes testified that initially he indicated 

that only five rollers needed replacing. Id. at 166. According to Lambert, who was with Hughes 

when he inspected the belt line, Hughes identified only three rollers – two top and one bottom – 

that had to be replaced. Id. at 251-52. Hughes testified that after receiving input from the miners 

at the site, he ultimately found seven more rollers which he believed had to be replaced. Id. at 

166; GX 1, at 1. Lambert agrees that the miners at the belt told Hughes that they were going to 

change nine additional rollers, but he testified that Hughes did not inspect these rollers. Id. at 

252. 

2 For reference purposes, the mine is divided into the Page side and the Contrary side. 

Page and Contrary are the locations of the mine portals. 

3 Hughes testified that there were seven rollers for every ten feet of belt. TR 12, at 167. 

34 FMSHRC Page 1671
 

 

Hughes determined that the condition of the rollers constituted a violation of 30 C.F.R. 

§75.1725(a), which states: “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.” Therefore, he issued Citation No. 8157100. GX 1. 

Further, he determined that “[t]he condition of the belt rollers indicates the condition has existed 

for a [sic] extended period of time.” Id. at 98; GX 1, at 1. Because of this, he believed that 

“adequate pre-shift examinations are not being conducted on the Tripper Conveyor belt.” In 

fact, he believes that the pre-shift examiners deliberately ignored the problems with the rollers. 

TR 12 at 169. He contended that this failure to conduct an adequate pre-shift inspection 

constituted a violation of 30 C.F.R. §75.360(a)(1). That section requires “a pre-shift examination 

within 3 hours preceding the beginning of any 8-hour interval during which any person is 

scheduled to work or travel underground.” He issued Order No. 8157101 due to this alleged 

violation. 

Respondent, while not contesting that bad rollers can be a fire hazard (TR12, at 220), 

disputes that the rollers were unsafe. There has never been a belt fire at Buc 1. TR 13, at 25. The 

belts are fire resistant, although not fire proof. TR 12, at 176-77. Buddy May worked for Consol 

at Buc 1 from 1997 until he retired in April 2009. TR 202. He was classified as a general laborer 

and belt man, but occasionally he performed pre-shift inspections. TR 203-04. On July 2, 2008, 

he was working as the Grassy Bunker operator on the owl shift. He performed the pre-shift 

inspection of the tripper belt and bunker area for the day shift at about 4:30 a.m. on July 2. TR 

206. He did not find any problems with the belt rollers. TR 12, at 212-13. However, it was noted 

on the pre-shift examination report from the owl shift on July 2, 2008 that the tripper belt needed 

additional cleaning, and there is no notation that the additional cleaning was performed. RX 1. 

May testified that when he did his inspection not only was the tripper belt down, but the take up 

rope was down; and when the take up rope is down, the belt sags, making it harder to see the 

rollers. TR12, at 213-14. Further, he testified that it cannot be determined if a roller is frozen if 

the belt is not operating. TR12, at 214. Finally, May testified that rollers with flattened spots can 

still work well, although it was Respondent’s policy to change flattened rollers. TR 214-16. 

When Hughes got to the belt line, he did not check the water line to see if the repairs had 

been completed. TR12, at 61. But the three miners working at the site informed Hughes that the 

belt had been running while the water line was shut off as it was being repaired. TR12, at 67. 

That the belt was operating while the water was shut off was acknowledged by the mine 

superintendent, Bill Meade, and the shift foreman who was repairing the water line, Lee Daniel. 

The inoperative water line supplied the water for the automatic fire suppression systems at the 

conveyor belt heads and the fire hoses along the 4 North belt. TR12, at 59-60. Meade testified 

that Daniel made a mistake by keeping the belt operating while the water was off, and Daniel 

corroborated Meade’s testimony. TR 13, at 47-48; RX 2, at 22, 45-46. Hughes determined that 

34 FMSHRC Page 1672
 

operating the belt while the water was off was a violation of mandatory standard 30 C.F.R. 

§75.1103-3, and issued order number 8157102. Section 75-1103-3 states: 

Automatic fire sensor and warning device systems installed in belt 

haulageways of underground coal mines shall be assembled from 

components which meet the minimum requirements set forth in 

§§75-1103-4 through 75-1103-7 unless otherwise approved by the 

Secretary. 

Hughes determined, for each of these alleged violations, that injuries resulting in lost 

workdays or restricted duty were reasonably likely; that the violations were significant and 

substantial; and that they resulted from high negligence. He based these determinations on the 

extent of the damage to the rollers; his belief that belt rollers are the leading cause of mine fires; 

and that in the absence of an operating water line a fire was reasonably likely. Further, he found 

that these violations constituted unwarranted failures to comply with mandatory standards. All of 

these violations were terminated expeditiously. The Secretary’s proposed penalties for these 

alleged violations are as follows: Citation 8157100 - $27,900; Order 8157101 - $23,800; and 

Order 8157102 - $23,800. 

Orders 8157127, 8157128 

On July 24, 2008, Hughes was again engaged in inspecting Buc 1. On this date, he was 

accompanied by a coal mine inspector trainee, Brian Keith Ray, and Kim Noah, the chief safety 

supervisor at Buc 1 at the time. Noah also was a certified mine foreman in Virginia. Hughes and 

Ray arrived at the mine at 8:00 a.m. Hughes, Ray and Noah were riding on the manbus in the 3 

East Mains on the way to O Panel when Hughes noticed that a layer of black float coal dust had 

settled on everything, from rib to rib and on all surfaces and equipment. He stated that it was 

obvious and extensive. GX 4, at 2; GX 5, at 2. The accumulation of float coal dust began at 

break 103 and got worse to break 107, where the manbus stopped. EX 8, at 4; TR13, at 205. 

Hughes then walked the rest of the way to break 115, where, he stated, the accumulation was 

even worse. TR13, at 90, 93. The distance between breaks 103 and 115 was about 1400 feet. GX 

4. Hughes stated that he measured these accumulations with a ruler and they averaged 1/16 of an 

inch deep. TR13, at 89-90. He added that based on the extent of the area affected and the amount 

of float coal dust which had accumulated; the condition had to have existed for more than one 

shift. TR13, at 105; EX 8, at 6. Hughes’s testimony was supported to some extent by the 

testimony of Ray. Ray only observed the area from break 107 back to break 103. TR13, at 206. 

He stated that he stopped at break 103 because that was where the mine surface started 

transitioning from white to a darker color. Id. at 205. “And then, as I walked back toward [break] 

107, it, it was getting darker and darker, and it was black.” Id. But he did not measure the depth 

of the float coal dust, nor did he accompany Hughes past break 107. Id. at 206. 

Hughes testified that float coal dust is combustible and an explosive hazard. TR13, at 85; 

see also TR13, at 207-08, 274. Respondent does not contest this point. Rather, respondent 

contends that there was no significant accumulation of float coal dust in the location indicated in 

34 FMSHRC Page 1673
 

 

the order. Respondent points to the testimony of Mike Ellis, a certified foreman in Virginia 

(TR13, at 233) who conducted the pre-shift examination of that part of the mine less than five 

hours before Hughes and Ray got there. TR13, at 127, 235; GX 4. Ellis testified that he saw no 

accumulations of coal float dust in the areas of breaks 103 to 115. TR13, at 237. Further, Noah 

testified that “[t]he offside of the belt naturally was, you know, it was a little bit gray, but in no 

means had float coal dust built up in, in black in color like he stated. . . . [I]t looked good.” 

TR13, at 264. Respondent points out that Hughes inspected the same area the previous day and 

did not find an accumulation of float coal dust (TR13, at 135-36), and other inspectors went by 

the same area and did not issue citations for accumulations of float coal dust. Further, respondent 

contends that the mine was shut down from the end of the day shift on July 23, 2008 until 6:00 

a.m. the next morning due to electrical and ventilation problems. TR13, at 266-67, 314-19. 

According to Respondent, from the time Hughes left the mine on July 23 until he returned to the 

site of the alleged violation at 9:30 a.m. on July 24, mining would not have been going on long 

enough to have produced the amount of float coal dust Hughes alleges was present. Finally, 

Respondent contends that even if there was an accumulation of float coal dust, it would not have 

been hazardous because it was too far away from the face to have ignited. TR13, at 289. 

Hughes determined that the accumulation of float coal dust that he found was a violation 

of §75.400, which prohibits the accumulation of float coal dust and other combustible materials. 

He also believed that the accumulation of float coal dust should have been noted in the pre-shift 

inspection conducted at 4:30 that morning because he believed the float coal would have taken at 

least a shift or more to have accumulated to that extent. Therefore, he found that Respondent also 

violated §75.360(a)(1), by conducting an inadequate pre-shift examination. Hughes found that 

both of these violations were reasonably likely to cause injury leading to lost workdays or 

restricted duty, and that these violations were significant and substantial. Further, he found both 

involved a high degree of negligence and were unwarrantable failures to comply with mandatory 

standards. Both violations were terminated by 11:30 a.m., by rock dusting and conducting a 

proper pre-shift inspection, respectively. The Secretary’s assessed penalty for the alleged 

violation of §75.400 is $70,000, and the assessed penalty for the alleged violation of 

§75.360(a)(1) is $53,800. 

Proof of Violations 

Citation 8157100 

The Secretary alleges that respondent violated §75.1725(a), which states: 

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. 

34 FMSHRC Page 1674
 

 

 

 

 

The citation states that this standard was violated because 12 belt support rollers on the 

tripper conveyor belt - 11 top and one bottom - “were frozen in place and would not rotate.” GX 

1. It goes on to state that these frozen rollers created a fire hazard by producing heat and friction 

when the belt dragged across them. Id. Although there was considerable testimony regarding 

whether some rollers had sizable flat spots and whether these flat spots, without more, can be 

hazardous, the citation clearly rests on the allegation that rollers were frozen in place, not just 

that they had flat spots.4 Therefore, to prove that Respondent violated this standard, the 

Secretary must first prove that rollers were frozen in place. 

There is a clear conflict in the testimony regarding this issue between Hughes, on the one 

hand, and May and Lambert on the other. When Hughes inspected the belt line, he stated that 

initially he found only five rollers which he believed had to be replaced. He did not try to turn 

the rollers, nor did he see the belt in operation. Therefore, he could only surmise, although he did 

so emphatically (see, e.g., TR 12, at 170), that those five rollers could not turn. He testified that 

some of these rollers were so worn that the outer shell of the rollers – about a quarter-inch thick 

metal – had eroded through. But he could not say how many of the total of 11 or 12 rollers he 

ultimately found were frozen were that badly worn. TR12, at 161, 165-66. Hughes’s inspection 

notes, prepared shortly after his inspection concluded on July 2nd, state that the rollers were 

“deformed” and had flat spots, but did not state that the outer shells had eroded through. GX 6, 

at 18-20. Moreover, his testimony is confusing regarding whether the rollers were so worn that 

the internal parts of some rollers were visible. See TR12, at 165.5 

Lambert, who accompanied Hughes on his inspection on July 2nd and has worked for the 

Respondent for close to 40 years, testified that Hughes initially said two top rollers and one 

bottom roller were in violation. Id. at 250-51. According to Lambert, neither of these rollers had 

4 In this regard, see Secretary’s Brief at 28-29. 

5 One aspect of Hughes’s testimony which I find particularly troubling is his belief that it 

was more important to catch Respondent red-handed in a safety violation than in abating the 

violation as soon as possible. See TR 12 at 56. Not only did he fail to point out to Lambert that 

the beltline was operating despite the absence of a water supply as soon as he discovered this 

condition while he was in the control room, but he deliberately took his time – about an hour 

(TR 12 at 249-50) - getting to the site where this violation was taking place. He did so to mislead 

Lambert regarding his ultimate destination in the mine, causing Lambert not to warn the miners 

at the beltline that a mine inspector was on his way there. In that way, he hoped to catch 

Respondent continuing to engage in the violation when he arrived at the scene. It seems to me 

that Hughes could have been endangering the very miners he is supposed to be protecting by his 

failure to point out the problem as soon as he became aware of it. Moreover, since he believed 

the violation that was occurring was operating the beltline without a water supply (at this point 

he had no knowledge of the condition of the rollers), he already had the evidence to prove that 

violation while he was in the control room. See id. at 51-53. 

It is hoped that Hughes’s actions are not a reflection of a policy endorsed by MSHA. 

34 FMSHRC Page 1675
worn through the outer surface. TR13, at 10-11. One of these rollers “had a fairly decent flat 

spot on it” and another “had a flat spot starting to wear on it pretty good”. TR 12, at 251. 

Nevertheless, he stated that both could have been reused. Id. at 253. He stated that Hughes 

concluded that there were 11 or 12 stuck rollers rather than just two or three because shortly 

thereafter, when he and Hughes returned to the bunker area, the miners working there told him 

they were going to replace eight or nine other rollers. According to Lambert, Hughes never 

looked at these rollers. Lambert added that some of these rollers were cleaned up and reused. Id. 

at 252; TR 13, at 21. 

May, who was retired for over two years at the time he testified at the hearing, stated that 

it cannot be determined whether a roller is stuck if the belt is not moving. TR12, at 214. During 

the pre-shift inspection he conducted at 4:30 a.m. on July 2nd, he did not see any rollers which 

were flattened down. Id. at 212. 

Hughes testified that he did not have a camera and therefore could not take photographs 

of the allegedly defective rollers while he was in the mine. Nor, apparently, did he obtain any of 

these rollers after they were removed so they could be photographed outside the mine. 

Obviously, photographs would have been a great help in determining the extent of the wear on 

the rollers. Without photographs or other corroborating evidence, the Secretary’s case regarding 

Citation 8157100 is dependent solely on Hughes’s testimony. I find that Hughes’s testimony 

regarding this issue is not persuasive. 

First, that Hughes believes he can tell that a roller is frozen in place simply by looking at 

it while the beltline is not operating strains credibility. 

Second, Hughes’s testimony regarding the number of frozen rollers he saw is 

inconsistent. He testified that: 

practically all of the rollers within the first 70 feet of the tail 

piece . . . was [sic] just gone completely. They was [sic] all frozen 

and had just been worn so much by the belt, . . . now the tops of 

them were flatten [sic] severely and not just a small amount. The 

rollers had been cut into by the belt severely. 

TR12, at 88 (emphasis added). Yet initially, he told Respondent that only three (according to 

Lambert) or five (according to him) rollers had to be replaced, and both he and Lambert agree 

that he upped the total to 11 or 12 after one of the miners told him there were more than just 

three or five that they were going to replace. In any event, neither the citation nor Hughes’s 

inspection notes indicate that more than 11 or 12 rollers were frozen. As was noted above, there 

were approximately 50 rollers within the first 70 feet of the tail piece. 

Third, Hughes’s inspection of the rollers was extremely brief. According to Hughes’s 

inspection notes, he issued a citation at the Page service shaft bottom regarding a battery charger 

at 11:00 a.m. GX 6, at 7; see also TR12, at 126. Since at that time he still could not inspect the 

34 FMSHRC Page 1676
 

water line he had come to inspect in order to terminate the violation he had identified the 

previous day, Hughes decided to take some intake air readings at the bottom of the service shaft 

to pass the time. GX 6, at 8-10; TR12, at 46. He and Lambert then went over to the production 

shaft, which is closer to the portal (see GX 9), where he took more intake air readings. Each of 

these intake air readings took several minutes. TR12, at 127. Hughes then went into the control 

room, which is right by the production shaft, where he found out that the tripper belt was 

running. Then almost an hour elapsed before they arrived at the bunker and tripper belt area. 

Hughes issued Citation 8157100 at 12:15. It is irrefutable that Hughes could not have spent more 

than a few minutes at the tripper belt before he issued the citation. It is doubtful that he could 

have performed more than a cursory inspection of the rollers in that short time. 

Buddy May, who performed the pre-shift inspection at 4:30 on the morning of Hughes’s 

inspection, retired in April, 2009, over two years before he testified at the hearing. Further, he 

was a laborer, not a management employee. He should have little incentive to sugar-coat his 

testimony to aid the Respondent’s case. His testimony shows that he conducted a pre-shift 

examination on the morning of July 2, 2008, and did not find any problems with the tail belt 

rollers that he failed to report. However, it is unclear from his testimony whether he actually 

observed all of those rollers during his inspection because the take up rope was down, which 

caused the beltline to sag. 

Dave Lambert was still working for Consol when he testified at the hearing, and had for 

almost 40 years. TR12 at 242. As a shift foreman, he was part of management and could be 

expected to testify in a light most favorable to the Respondent. Nevertheless, his testimony is 

consistent with the time line of events, and he testified clearly and without equivocation or 

self-contradiction. 

I find that the evidence fails to establish any of the belt support rollers were frozen in 

place. It is the secretary’s burden of proof, and Hughes’s testimony on this issue simply is not 

persuasive. Therefore, this citation must be dismissed. 

Order 8157101 

The Secretary alleges in this order that Respondent violated §75.360(a)(1), which states 

in relevant part: 

[A] certified person designated by the operator must make a 

preshift examination within 3 hours preceding the beginning of any 

8-hour interval during which any person is scheduled to work or 

travel underground. 

It is the Secretary’s position that because 12 support rollers “were damage[d] to the extent that 

the belt rollers had frozen in place and would not rotate “, adequate pre-shift examinations of 

those rollers had not been conducted “for an extended period of time.” GX 2, at 2. But again, 

this citation rests on Hughes’s belief that many rollers were frozen in place, which I found has 

34 FMSHRC Page 1677
 

not been proven. Further, I credit May’s testimony that he conducted a timely pre-shift 

examination that morning. Therefore, Order 8157101 must be dismissed. 

Order 8157102 

The Secretary alleged in this order that Respondent violated §75.1103-3. This section 

states: 

Automatic fire sensor and warning device systems installed in belt 

haulageways of underground coal mines shall be assembled from 

components which meet the minimum requirements set forth in 

§§75-1103-4 through 75-1103-7 unless otherwise approved by the 

Secretary. 

As I held in the October 18, 2011 Order Denying Motion to Amend Petition for Assessment of 

Civil Penalty (hereafter “Order Denying Amendment”),6 that section of the regulations has 

nothing to do with any allegations in this case. Accordingly, this order is dismissed. 

Order 8157127 

In this order, the Secretary alleges that Respondent violated §75.400, which states: 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings 

or on diesel-powered and electric equipment therein. 

This order was issued at 9:30 a.m. on June 24. Hughes was present at the mine 

doing an inspection the previous day and did not encounter the same condition regarding 

accumulated float coal dust at that time. TR13, at 114, 172. He left the mine on June 23 

sometime before the start of the evening shift, which began at 3:30 p.m. Id. at 166-67. 

Hughes stated that the amount of float coal dust he found on June 24 must have 

accumulated over at least a full shift or more, and could not have been caused solely by 

restarting the belt after a period of idleness. Id. at 115. Because of this, he also believed 

that the float coal dust present should have been noted on the pre-shift examination report, 

and the failure to do so indicated that the pre-shift examination was inadequate. 

Michael Ellis was a pre-shift examiner on the owl shift for the Respondent on July 

24, 2008. He had worked for Consol for six or seven years at the time he testified at the 

hearing. TR13, at 232-34. Ellis conducted the pre-shift examination of the area of the 

6 The Order Denying Amendment is incorporated by reference into this decision. 

34 FMSHRC Page 1678
 

mine in question at about 4:30 a.m. He testified that he believes the belts were running 

that morning, although he is not sure because the inspection occurred three years ago. Id. 

at 241-42. He added that “most of the time, we are producing coal.” Id at 238. Although 

he testified that he did not see any evidence of float coal dust during his pre-shift 

inspection that morning (id. at 237, 239), he also testified that he cannot specifically recall 

that morning. Id at 249. However, he stated that he probably did not see any, since he did 

not record it in the pre-shift report. Id. at 249. 

Kim Noah’s testimony is in stark contrast to that of Hughes. Unlike Ellis, Noah 

remembered specific details from the July 24, 2008 inspection because “it was very 

serious.” TR 13, at 282. Noah worked for Consol for 33 years. (TR 13, at 260). Although 

he retired in May, 2009, and therefore should have nothing at stake in this case, it is not 

hard to conceive that his memory of what occurred on that date might favor Respondent’s 

position. Nevertheless, his testimony that there was no accumulated float coal dust from 

breaks 103 to 115 was unequivocal and is entitled to considerable weight. 

Craig Dickerson has worked for Respondent since 1990. On July 24, 2008, he was 

the longwall coordinator. At the time of the hearing he was the assistant mine 

superintendent. TR13, at 295-96. On July 24, he entered the mine at 7:30 a.m., 

accompanying MSHA inspector Joe New, who was to perform a health inspection at the 

longwall. E.g., id. at 304. Dickerson and New rode the manbus to break 103, where they 

had to turn off to get to the longwall. Id. at 300. It takes the manbus about 30-35 minutes 

to get from the portal to break 103. Id. at 306. At break 103, Dickerson stated that he 

could see an additional 200 feet down the main vent shaft, to between breaks 104 and 105. 

Id. at 300. He testified that he did not see “1/16 of an inch [of] float coal dust from rib to 

rib, the roof, the ribs, the floor . . . .” Id. at 301. Such a condition “would have been 

obvious.” Id. 

He added that New did not point out a problem to him regarding float coal dust or 

issue a citation. Id. at 301-02. 

Finally, Elmer Deel was an assistant general maintenance foreman at Buc 1 in 

July, 2008, and is still employed there by Consol. TR13, at 311. Deel was called to testify 

by Respondent on one issue – how long the mine was in production on July 23 and July 

24. It is Respondent’s position that the mine was out of production for so much time from 

the end of the day shift on July 23 through the time of Hughes’s inspection on July 24 that 

it would have been impossible to have produced the amount of float coal dust Hughes 

alleges he saw at 9:30 a.m. on July 24. 

I give Deel’s testimony little weight. He admitted that he has no recollection of the 

events that transpired over that period. TR13, at 314, 320. His testimony consisted of 

explaining notations made by him and other assistant general maintenance foremen in a 

notebook kept at the mine. Id. at 312-13. He did not look at any other records in 

preparation for testifying at the hearing. Id. at 320-22. He stated the notebook, relevant 

34 FMSHRC Page 1679
 

 

excerpts of which are in evidence as Respondent’s Exhibit 5, is a written record of 

maintenance at the mine which is filled in after every shift. Id. He wrote the notes for the 

July 23, 2008 day shift and, judging by the handwriting, the July 24 day shift as well; but 

the notes for the evening shift on July 23 and the owl shift that followed were written by 

others.7 These records, whether written by him or someone else, are very sketchy. Most 

important, they are silent regarding the time when anything was done. The following 

entries are paramount: 

July 23, 2008 day shift: “Fan went down Pulled the Mine did not get done 

evening Shift to follow up” 

July 23, 2008 evening shift: “Put HV Back in underground”. 

There is no indication in these records of when, during the day shift, the 

ventilation fans went down and the mine was evacuated. Nor is there any indication of 

when the fans were turned back on during the evening shift. But according to these 

records, the fan went down, the mine was evacuated, and possibly repairs had started 

before the day shift ended, and production had started again during the evening shift. 

Accordingly, even if Deel’s testimony that shutting down the fans would have caused 

production to have stopped for at least six hours is accurate, production could have been 

going on for at least 12 hours – one and a half shifts - by the time Hughes inspected the 

area from breaks 103 to 115 at 9:30 a.m. on July 24. 

Deel also pointed out that the notes from the evening shift on July 23 show that a 

take-up motor on the main beltline was changed, and while that was being accomplished 

the mainline belts could not have operated. TR13, at 318-19. This would have stopped 

production. But again, these notes do not indicate the time at which this repair was made 

or how long it took. 

Further, Deel admitted that the Respondent maintained records which would have 

pinpointed the hours during which the fans were operating and the mine was in production 

on July 23 and 24, 2008, but he did not review those records. TR13, at 320-22. Moreover, 

the Respondent did not offer these records into evidence, relying instead on vastly inferior 

documentary evidence and Deel’s imprecise testimony. 

There is no way to reconcile all this contradictory testimony. The testimony of 

Hughes and Ray is totally inconsistent with that of Noah and Dickerson regarding the 

condition of the mine at 9:30 a.m. on July 24. Since Ray saw only a limited part of the 3 

East Mains area in question, and Dickerson saw even less, determining whether Order 

8157127 is valid essentially boils down to Hughes’s testimony versus that of Noah. 

7 In fact, the notes for the July 23-24 owl shift were undoubtedly written by two different 

people. 

34 FMSHRC Page 1680
I find that the Secretary’s evidence does not outweigh the Respondent’s because 

Hughes’s opinion is jaundiced. Hughes has a very negative opinion of coal mine 

operators. Despite the fact that it is a criminal violation of the Mine Act (see §110(e)) to 

provide anyone with advance notice of an inspection, he is convinced that Dave Lambert, 

Respondent’s shift foreman, would have notified the miners at the beltline that Hughes 

was coming to inspect it if he was given the chance to do so. See TR 12, at 55-56. 

Moreover, Hughes believes that all of Respondent’s pre-shift examiners acted in bad faith, 

deliberately ignoring the violations of safety standards that he found. See TR 12, at 169; 

TR 13, at 128-29. In addition, Hughes appears to be intent on finding violations regardless 

of whether he has reliable evidence to support them, as the evidence regarding Citation 

8157100 demonstrates. Finally, as was noted in Footnote 5 above, Hughes was more 

concerned with catching Respondent engaging in a violation than in having the violation 

corrected as soon as possible, potentially endangering the safety of the miners. Because of 

these factors, I do not trust Hughes’s determinations. 

Therefore, I give more weight to the testimony of Kim Noah and find that there 

were no accumulations of float coal dust from crosscuts 103 through 115 along the 3 East 

Mains at 9:30 a.m. on July 24, 2008. Accordingly, Order 8157127 is vacated. 

Order 8157128 

This order also alleges a violation of §75.360(a)(1), contending that an inadequate 

pre-shift examination was conducted along the 3 East Mains because the hazardous 

accumulations of float coal dust between breaks 103 and 115 were not recorded or corrected. 

However, since I have found that the Secretary has not proven the existence of these hazardous 

accumulations of float coal dust, she has also failed to prove that the pre-shift examination 

should have identified this condition. Therefore, this order is vacated. 

Since I have vacated all of the citations and orders comprising this docket, it must be 

dismissed in its entirety. 

34 FMSHRC Page 1681
 

ORDER 

IT IS ORDERED that Citation 8157100 and Orders 8157101, 8157102, 8157127 and 

8157128 are VACATED, the proposed penalties are DENIED, and this case is DISMISSED. 

/s/ Jeffrey Tureck 

Jeffrey Tureck 

Administrative Law Judge 

Distribution: (certified mail) 

Angele Gregory, Attorney, United States Department of Labor, Office of the Solicitor, 211 7th 

Avenue North, Suite 420, Nashville, TN 37219 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Drive, Suite 310, 

Lexington, KY 40509. 

34 FMSHRC Page 1682
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

303-844-5267/ FAX 303-844-5268 

July 24, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : Docket No. WEST 2011-957-M 

Petitioner, : A.C. No. 05-00864-252219 

: 

v. : 

: Morrison Plant 

AGGREGATE INDUSTRIES WRC, INC., : 

Respondent. : 

Appearances: Amanda K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

Al Quist, Safety Manager, Aggregate Industries WRC, Inc., Golden, Colorado, 

for Respondent. 

Before: Judge Manning 

DECISION 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), 

against Aggregate Industries WRC, Inc., (“Aggregate Industries”) pursuant to sections 105 and 

110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine 

Act”). The parties introduced testimony and documentary evidence at a hearing held in Denver, 

Colorado. In lieu of filing post-hearing briefs, the parties presented oral argument at the hearing. 

This case involves Citation No. 6581985 issued under section 104(a) of the Mine Act at the 

Morrison Plant. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

On March 9, 2011, MSHA Inspector David Grosek issued Citation No. 6581985 under 

section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 56.11012. The citation 

alleges the following: 

The Atlas Copco Drill has 2 elevated work platforms, and the 

platform around the cab area does not have a fall prevention barrier 

to prevent miners from falling and being injured. Also the work 

platform around the actual drill mechanism has rails and chains at 

the access ladders, but an approximate 15 inch gap between the 

rails, at the top, which would allow a miner to fall and be injured. 

These platforms are approximately 4 ft. above the ground and have 

34 FMSHRC Page 1683
 

ladders accessing them. The machine is not running today. 

Miners use the platforms when the machine is operating. This 

standard was not cited at this mine during the past two years. 

(Sec’y Ex. 1). Inspector Grosek determined that an injury resulting in lost workdays or 

restricted duty was reasonably likely to occur, that the violation was of a significant and 

substantial (“S&S”) nature, that one person would be affected, and that the violation was the 

result of high negligence on the part of the operator. The Secretary has proposed a penalty of 

$687.00 for this alleged violation. 

A. Summary of Testimony 

Inspector Grosek inspected Aggregate Industries’ Morrison Plant for an E01 inspection. 

(Tr. 16-17). This mine has two E01 inspections every year. (Tr. 17). An E01 inspection 

includes inspecting the subject drill. (Tr. 34). He issued Citation No. 6581985 for a violation of 

§ 56.11012. (Tr. 18-19; G. Ex. 1). The citation was issued because the drill had an elevated 

platform that did not have a barrier across the ladder access. (Tr. 19; Ex. G-1). Inspector Grosek 

took photos of the condition, which the Secretary submitted as Exhibit 2. (Tr. 19-20; Ex. G-2). 

Inspector Grosek was concerned that there were two openings on this platform that a person 

walking by could fall through. (Tr. 24). The first opening for the ladder access was two feet 

wide. (Tr. 24, 39). The second opening, on the other side of the drill, was ten inches wide. (Tr. 

27). The platform was four feet above the ground. (Tr. 25). The operator terminated the citation 

by putting chains across the openings. (Tr. 28). 

Inspector Grosek testified that he believed previous inspectors had failed to cite an 

obvious hazard. (Tr. 32, 35). It was his opinion that a reasonably prudent person familiar with 

the mining industry would have known that this area should have been protected. (Tr. 29). He 

also believes that the chain does not create an additional safety hazard because it is possible to 

unhook the chain and climb the ladder while maintaining three points of contact. (Tr. 45-46). 

Robert Gentry, a quarry supervisor for Aggregate Industries, testified that the Atlas 

Copco, Ingersol-Rand DM45 drill was delivered to the Morrison Plant in 1995. (Tr. 55-56). He 

moved the cab access from the original location to its current location to make it safer when 

drilling at the highwall. (Tr. 57-58). He did not feel that a barrier across the ladder was 

necessary. (Tr. 58). When operating the drill, Mr. Gentry would walk past the opening once per 

shift, but never believed he would fall through the opening. (Tr. 59). The walkway surface is 

expanded metal that provides a lot of grip. (Tr. 60). In inclement weather, miners take extra 

care because there is a slight chance that a miner could slip. (Tr. 60). Gentry noted that a 

Caterpillar 988 front-end loader used at the quarry had a ladder attached to a small, raised 

platform from which stairs led to the operator’s cab. (Tr. 69-70; Ex. R-A7). A miner would 

have to travel through the area to access the cab and, more importantly, maintenance would 

sometimes have to be performed at that location. There is no fall protection barrier at the top of 

the ladder, yet MSHA has never issued a citation for the lack of a fall protection barrier. 

Mr. Gentry testified that he believes the chain is a hazard because it cuts off the miner’s 

emergency access from the cab should the drill sink while on the highwall. (Tr. 61-62). Also, 

34 FMSHRC Page 1684
having a chain at the top of the ladder creates a hazard by forcing the miner to unhook the chain 

while on the ladder, exposing the miner to the risk of losing his grip and falling. (Tr. 67). 

B. Summary of the Parties’ Arguments 

1. Secretary of Labor 

The Secretary argues that the standard is clear and most of the elements of the standard 

are not in dispute. (Tr. 80). The opening was at least two feet wide. (Tr. 80). It was reasonably 

likely that a person could fall through this opening because once a shift a person must walk by 

the opening and a person could trip on a nearby step and inclement weather could make the 

walkway slippery. (Tr. 81). A “travelway” is “a passage, walk or way regularly used and 

designated for persons to go from one place to another.” 30 C.F.R. § 56.2. A person falling from 

an opening four feet high may have serious, even fatal, injuries, resulting in lost workdays (Tr. 

82). As a preliminary matter, the Secretary lowered the negligence from “high” to “moderate.” 

(Tr. 5). 

Next, the Secretary argues that MSHA inspectors miss things, but this does not excuse 

the mine from recognizing hazards and complying with standards. (Tr. 82-83). She relies on the 

decisions in Blue Mountain Production Company and Main Line Rock & Ballast to support this 

argument. See Mainline Rock & Ballast, Inc., 33 FMSHRC 307, 326 (Jan. 2011) (ALJ); Blue 

Mountain Production Company, 32 FMSHRC 1464, 1474 (Oct. 2010) (ALJ). 

Finally, in response to the operator’s argument that it lacked notice, the Secretary argues 

that a reasonably prudent person familiar with the mining industry would have recognized this as 

a hazard. (Tr. 83). She relies on the testimony of the MSHA inspector and evidence that similar 

openings on this drill had chains in place. (Tr. 83-84). 

2. Aggregate Industries 

Aggregate Industries argues that the issuance of this citation was a subjective decision by 

the MSHA inspector. (Tr. 85). The drill at issue has been through 30 previous inspections from 

several different inspectors and no citation was ever issued for the two openings. (Tr. 85). 

Aggregate also has other machines with similar configurations that were not cited. (Tr. 85). 

Further, Aggregate Industries argues that it was not reasonably likely that a person would fall 

through the opening because there is no evidence that anyone has fallen through similar openings 

at the quarry or at any other quarry. (Tr. 85). Finally, Aggregate Industries argues that the chain 

creates an additional safety hazard by forcing the operator to take his hands from the rail to 

remove the chains to access the platform. (Tr. 11). The chain also prevents the operator from 

leaving the drill cab area quickly in the event of an emergency. (Tr. 11). 

C. Analysis of the Issues 

The cited standard requires that “openings above, below, or near travelways through 

which persons or materials may fall shall be protected by railings, barriers, or covers.” 30 C.F.R. 

§ 56.11012. A “travelway” is defined as “a passage, walk or way regularly used and designated 

34 FMSHRC Page 1685
for persons to go from one place to another.” 30 C.F.R. § 56.2. The danger of materials falling 

from the platform through the openings is not an issue in this case. 

I find that Aggregate Industries violated this standard. The platform on the drill 

extending from the cab and along the side of the drill was a travelway and the drill operator 

walked along it at least once a day. (Tr. 23, 59). Any miner walking along the decking from the 

cab to the back of the drill would pass by the access opening which was not equipped with any 

protective device to prevent the miner from falling. (Tr. 19). The drill operator walked in that 

direction once a day to check the fluid level in the radiator. The other opening was very narrow. 

At only 10-inches wide, it was highly unlikely that anyone could fall through that opening even 

if he tripped or stumbled. (Tr. 67; Ex. R-B4). A miner was in that area very infrequently to 

perform maintenance on an air compressor. I find that the Secretary did not establish that the 

opening was along a travelway used by miners “to go from one place to another.” Id. As a 

consequence, I conclude that this second opening did not violate the safety standard. 

The Atlas Copco drill had been at the Morrison Plant for 15 years before this citation was 

issued. (Tr. 56). The Morrison Plant has had two E01 inspections every year since that time. 

(Tr. 17). At least 30 inspections of the Morrison Plant, by various MSHA inspectors, had 

occurred without a citation being issued for this condition. (Tr. 8, 17, 35). Thus, until this 

inspection, MSHA had not considered the drill platform to be a travelway and had not 

recognized the access opening as a hazard. 

The Commission test for whether an operator had notice of an interpretation is “whether a 

reasonably prudent person familiar with the mining industry and the protective purposes of the 

standard would have recognized the specific prohibition or requirement of the standard.” Ideal 

Cement Co. 12 FMSHRC 2409, 2416 (Nov. 1990). In Ideal Cement, the Commission held that 

this test is an objective standard. BHP Minerals International Inc. 18 FMSHRC 1342, 1345 

(Aug. 1996). 

Prior inconsistent enforcement of a safety standard is a factor the Commission considers 

when evaluating whether a mine operator has received fair notice of the Secretary’s 

interpretation of an ambiguous regulation. Alan Lee Good d/b/a Good Construction, 23 

FMSHRC 995, 1006 (Sept. 2001) (“Good Construction”). In Good Construction, the mine had 

maintained the cited areas for 18 years, with up to 20 MSHA inspections, without an MSHA 

citation for the conditions at issue. The Commission's decision was split on the issue of how that 

particular case should be handled. The holding is essentially the same in both opinions with 

respect to how this issue should be analyzed in future cases, as summarized in the opinion of 

Commissioners Jordan and Beatty: 

In applying the reasonably prudent person standard to a 

notice question, the Commission has taken into account 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 

published notices informing the regulated community with 

“ascertainable certainty” of its interpretation of the standard in 

question. Also relevant is the testimony of the inspector and the 

34 FMSHRC Page 1686
 

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 mining industry, and the 

circumstances at the operator's mine. 

Id. at 1005 (citations and footnote omitted). 

I find that the cited standard was ambiguous with respect to the openings cited by 

Inspector Grosek. The opening of particular concern to the inspector was at the top of the ladder. 

The drill operator would only pass near this opening once a shift. The decking was expanded 

metal and the guardrails on both sides of the openings were very substantial. (Ex. G-2). The two 

openings did not create an obvious hazard. In addition, there is a similar opening at the top of 

the ladder on at least one front-end loader that has never been cited by MSHA. (Ex. R-A7). 

Parts on the loader must be serviced in the area immediately adjacent to that opening. Given 

these facts, the applicability of the safety standard to the cited openings was very ambiguous 

especially considering the history of enforcement at the quarry. 

Aggregate Industries was led to believe by about 30 prior citation-free inspections that 

the two cited openings did not violate the safety standard and that the openings that required 

protection were adequately secured. There is nothing in the record that indicates Aggregate 

Industries knew or should have known that the unchained openings might be considered a 

violation of this safety standard. A reasonably prudent person familiar with the mining industry 

and the protective purposes of the standard would have reached the same conclusion as 

Aggregate Industries. As a consequence, I am vacating the citation. 

It is important for Aggregate Industries to understand that by vacating the citation, I am 

not holding that the safety standard does not apply to the opening at the top of the ladder. I am 

only holding that Aggregate Industries was not provided with the notice that is legally required 

to assess a civil penalty for violating the safety standard. As a result of this decision, Aggregate 

Industries has now been provided such notice and it is required to comply with the requirements 

of section 56.11012 at the top of the ladder. As stated above, I find that the safety standard does 

not apply to the cited 10-inch wide gap in the railing because there was no danger of someone 

falling through the opening and the platform was not a travelway. 

II. ORDER 

For the reasons set forth above, Citation No. 6581985 is hereby VACATED and this 

proceeding is DISMISSED. 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

34 FMSHRC Page 1687
Distribution: 

Amanda K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202 

Albert Quist, Safety Manager, Aggregate Industries WRC, Inc., 1701 Cole Blvd, Suite 100, 

Golden, CO 80401 

RWM 

34 FMSHRC Page 1688
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W. SUITE 9500
 

WASHINGTON, DC 20001
 

TELEPHONE: 202-434-9980 / FAX: 202-434-9949
 

July 26, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA) : Docket No. LAKE 2011-206-M 

Petitioner, : A.C. No. 20-00422-239358 Y173 

: 

: Mine: Tilden Mine 

v. : 

: 

DAWES RIGGING & CRANE RENTAL, : 

Respondent. : 

DECISION 

Appearances: Natalie E. Lien, Esq., U.S. Department of Labor, Denver, CO, on behalf of the 

Secretary 

Tod T. Morrow, Esq., Morrow & Meyer, LLC, North Canton, OH, on behalf of 

Stansley Mineral Resources, Inc. 

Before: Judge David F. Barbour 

This case is before me on a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) acting through the Mine Safety and Health Administration 

(“MSHA”) against Dawes Rigging & Crane Rental (“Dawes” or “the company”) pursuant to 

sections 105 and 110, 30 U.S.C. §§ 815, 820, of the Federal Mine Safety and Health Act of 1977 

(the “Mine Act”). 30 U.S.C. § 801, et seq. The Secretary seeks the assessment of a civil penalty 

of $3,000 against Dawes for one violation of the Secretary’s mandatory safety standards for 

surface metal/nonmetal mines. Dawes was cited for the violation while performing contract 

work on the south side of the Tilden Mine pellet plant, which is owned and operated by Cliffs 

Natural Resources, and is located in Marquette County, Michigan. The violation is alleged in 

Citation No. 6502467, which was issued pursuant to section 104(d)(1) of the Mine Act. 30 

U.S.C. § 814(d)(1). The Secretary asserts that the operator violated 30 C.F.R. § 56.16009, that 

the violation was a significant and substantial contribution to a mine safety hazard (“S&S” 

violation), and that the violation was caused by Dawes’s unwarrantable failure to comply with 

the cited standard. Section 56.16009 requires that “all persons . . . stay clear of suspended 

loads.” In answering the petition, the company argued that it did not violate section 56.16009 

and that the Secretary wrongly characterized the violation as S&S and unwarrantable. The case 

was heard in Madison, Wisconsin. 

34 FMSHRC Page 1689
STIPULATIONS
 

The parties have stipulated as follows: 

1.	 In May 2010, Dawes . . . was assembling a crane at the Tilden [M]ine . . . in Marquette 

County, Michigan. 

2.	 [The] Tilden [M]ine is a surface metal/nonmetal mine. 

3.	 On May 27, 2010, MSHA issued to Dawes . . . Citation Number 6502467, alleging a 

violation of 30 C.F.R. § 56.16009. 

4.	 At the time the citation was issued, [Dawes] was engaged in operations in the United 

States, and its operations affected interstate commerce. 

5.	 Dawes . . . is subject to the jurisdiction of the Mine Act. 

6.	 The Administrative Law Judge has jurisdiction over these proceedings pursuant to 

Section 105 of the Mine Act. 

7.	 A true copy of the citation at issue in this proceeding, Government Exhibit Number 1, 

was served on Dawes . . ., as required by the Act. 

8.	 Dominic Vilona was an authorized representative of the . . . Secretary of Labor assigned 

to the Marquette, Michigan, field office of MSHA’s Metal/Nonmetal Division at the time 

the citation was issued, and was acting in his official capacity when the citation was 

issued. 

9.	 The proposed penalty will not affect [Dawes]’s ability to remain in business. 

10.	 The certified copies of the MSHA Assessed Violations History reflect the history of the 

mine for 15 months prior to the date of the issuance of the citation at issue, and may be 

admitted into evidence without objection by Respondent. 

11.	 The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth 

of the matters asserted therein. 

Jt. Ex. 1; Tr. 13-14. 

34 FMSHRC Page 1690
THE TESTIMONY
 

SECRETARY’S WITNESS
 

Dominic Vilona 

Dominic Vilona has worked for MSHA for 17 and a half years, first as an inspector in 

training, then as an inspector and as a supervisory inspector. Tr. 19-20. As an inspector, Vilona 

inspected about 45 metal/nonmetal mines a year, most of them surface mines. Tr. 21. As part of 

inspecting these mines, Vilona, under MSHA’s direction, also inspected contractors operating at 

mine sites. Tr. 21. Vilona has no experience or training in actually operating or assembling a 

crane. Tr. 68-69, 70. However, Vilona has witnessed a few cranes being assembled. Tr. 85. 

The citation in question was issued May 27, 2010. Inspector Vilona was dispatched to 

conduct an inspection at the Empire Mine, a sister mine to the Tilden Mine. Tr. 24. The two 

mines, owned by the same operator, abut each other. Tr. 24. Vilona knew that Cliffs Natural 

Resources was having a crane constructed at the Tilden mine and that Dawes had been hired to 

do the work. Tr. 25. Vilona was interested, and he had mine personnel take him in a company 

van to observe the crane assemblage. The van stopped at the top of a hill where the group could 

look down on the assembly site. Tr. 26-29. Vilona estimated that when he was in the van at the 

top of the hill, he was about 50 yards away from the crane assembly operation and that the hill 

was about 75 feet high.1 Tr. 61. 

At the crane assembly site, a Manitowoc 14,000 crane was suspending the boom of the 

much larger Manitowoc 21,000 crane that the Dawes crew was assembling. Tr. 26. The crew 

consisted of several men, one of whom was William “Bill” Rahmlow. Vilona later learned that 

Rahmlow was the crew foreman of the crane assembly. Vilona believed Rahmlow was standing 

under the suspended boom of the larger crane, signaling to the other men, and apparently 

directing the operation. Tr. 27, 33, 35. Vilona observed another man, whom he later learned 

was Jeffrey “Jeff” Eick, holding a tag line on the opposite side of Rahmlow. Tr. 27, 35. Vilona 

did not see any other tag lines. Tr. 73-74. He saw another man, whom he later learned was John 

Schlieve, a crane assembly foreman like Rahmlow, on the large crane body waiting to place a 

pin that would secure the crane boom to the crane body. Tr. 27. 

Vilona sat in the van, observing the scene below him, for 15 to 20 seconds. Tr. 54. He 

testified that he could see clearly from his vantage point on the hill. Tr. 83. However, Vilona 

did not have binoculars to view the progress of the crane assembly from the top of the hill, and 

he did not get out of the vehicle. Tr. 60-61. 

1

 William Rahmlow, testifying for the company, disagreed with these figures. He 

estimated that the hill was 150 yards away from the road and that it was 80 feet high. Tr. 170. I 

credit Rahmlow’s estimation because while testifying, Vilona was not entirely clear on the 

layout of the area. 

34 FMSHRC Page 1691
Vilona asked the van driver to proceed down the hill and to approach the crane. Tr. 31. 

By the time Vilona reached the crane assembly site a minute-and-a-half later, Rahmlow was 

slightly to the side of the boom, and Eick, who had been on the opposite side of the boom from 

Rahmlow, was now on the same side as Rahmlow, still holding the tag line. Eick had clearly 

walked under the suspended boom to change sides. Tr. 31-33. 

Vilona introduced himself to Rahmlow and asked why he, Rahmlow, had been under the 

boom. Tr. 33. At the court hearing, Vilona recalled that Rahmlow replied, “[s]ometimes you 

have to get under the boom to . . . get the job done, or something to that effect, to get it lined up.” 

Tr. 33-34. Vilona also read from his contemporaneous field notes that Rahmlow claimed that 

“[h]e need[ed] to be under [the boom] to see everything.” Tr. 35. When Vilona asked Rahmlow 

why Eick had crossed under the suspended load, Rahmlow responded that Eick had crossed 

under “because he needed to hold [the load] steady.” Tr. 36. Vilona testified that Rahmlow 

never directly admitted to being under the boom, nor did he deny it. Tr. 66, 83. 

In the citation, Vilona determined that the violation affected two people, that serious 

injuries were reasonably likely to result from the violation, that the violation was due to a high 

degree of negligence, that the violation was S&S, and that the violation was caused by Dawes’s 

unwarrantable failure to comply with section 56.16009. Gov’t Ex. 1. In designating the citation 

as affecting two people, Vilona had Rahmlow and Eick in mind. Tr. 45. Vilona determined that 

an injury was reasonably likely to result because of the frequency with which this violation 

seemed to occur with this crew given Rahmlow’s statement that “sometimes you have to get 

underneath the load.” Tr. 45. Vilona testified that “[i]f that’s a practice; then left uncorrected, 

through the continued mining process, making picks over and over again in conditions where 

there is wind, where there [are]not enough tag lines, then it’s reasonably likely that something is 

going to happen to injure that person.”2 Tr. 45-46. Vilona testified that the injury that would 

result from the hazardous condition would be a crushing injury, and that the crushing injury 

would likely result in death.3 Tr. 46. Vilona determined that the company’s negligence was high 

because “there was a foreman involved [who] had reason to know or had knowledge of the 

violation and . . . [placed] . . . another employee at risk, along with himself.” Tr. 55. 

Vilona listed all the possible hazards that could occur because of the violative condition: 

rigging failure, operator error, a load getting hooked on something and then suddenly releasing, a 

swinging boom, inadvertent lowering of the machine, and wind. Any of these listed hazards 

could result in the boom pinning, hitting, or crushing a person. Tr. 40. According to Vilona, 

relevant to this case in particular, is that there was wind that day, and wind can cause a boom to 

move while it is suspended. Tr. 40. In Vilona’s opinion, the tag line used was not sufficient 

2

 “Pick” is a commonly used word that describes the lifting of a load by a crane. The 

pick referred to in this case is the smaller crane lifting the boom of the larger crane. 

3

 The Secretary presented multiple fatalgrams to illustrate the seriousness of injuries 

resulting from this type of violation. Tr. 46-48. 

34 FMSHRC Page 1692
given the conditions and the load. Tr. 41. He believed that there should have been at least two 

tag lines on the boom, one on each side, and possibly two more on the “backside of the lattice, to 

hold it in position in that type of wind.”4 Tr. 41. According to Vilona, if the crew did not have 

enough tag lines for the conditions, the crane operator should not have made the pick. It was too 

dangerous. Tr. 41. Vilona explained that the problem with having only one tag line hooked on 

only one side is that “if the wind blows one way, you can hold it. If it blows the other way, you 

can’t. There is nothing you can do.” Tr. 41. 

In Vilona’s opinion, Dawes’s violation of section 56.16009 rose to the level of 

unwarrantable failure for a number of reasons. Vilona reasoned that Rahmlow was a foreman 

and that he went under the load in front of the men he was directing. Tr. 53. Vilona also 

believed that Rahmlow instructed Eick to go underneath the suspended load. Tr. 53. Vilona 

testified that the violation created an extreme hazard because “of the unpredictability of the 

suspended loads and the multiple things that can happen; there is anything from sling failures[,] 

to wind[,] to operator failure . . . the seriousness of the injury that were to occur [sic] would be 

significant, fatal or permanently disabling, or something very serious.” Tr. 53. As previously 

noted, based on Vilona’s conversation with Rahmlow, it seemed to Vilona that this was not a 

one-time occurrence. Tr. 54. Vilona also understood that there are no exceptions to section 

56.16009. Tr. 51-52. He stated that there are no “exigent or emergent situations where it would 

be okay to be under a suspended load.”5 Tr. 52, 86. Vilona noted that it is a widely recognized 

rule in the industry that traveling under a suspended load is prohibited. Tr. 52. In Vilona’s 

opinion, the company did not provide him with any information that would mitigate the 

violation. Tr. 55. 

COMPANY’S WITNESSES 

John Schlieve 

John Schlieve has been employed by Dawes for 15 years. Tr. 88. As of May 27, 2010, 

the day the citation was issued, Schlieve had 22 years of crane assembly experience. Tr. 88. 

Like Rahmlow, Schlieve is an Assembly/Disassembly (“AD”) Director for Dawes. Tr. 88. He 

has worked in that position for 14 years. Tr. 88. On the day of the citation, Schlieve was on the 

crew of the Tilden mine crane assembly operation, but Rahmlow, not Schlieve, was acting as AD 

Director. Tr. 88. 

4

 Witnesses used the word “lattice” to refer to the boom for the Manitowoc 21,000 crane. 

The boom was constructed of metal rods in a diagonal or triangular pattern with open spaces 

between each of the rods. 

5

 This is also an OSHA standard, which is the body of regulations that Dawes most often 

works under. Tr. 52. 

34 FMSHRC Page 1693
 

On May 27, Rahmlow held a safety meeting first thing in the morning at the Tilden job 

site. Tr. 97. At this meeting, the crew members discussed “the task of the day . . . , any hazards 

that . . . may have come about as far as pinch points [and] overhead suspended loads.” Tr. 97. 

Before beginning the project, Cliffs Natural Resources also conducted a site-specific orientation 

training session during which the group covered MSHA standards and regulations. Tr. 97. 

Schlieve testified that on May 27, there were five Dawes employees working at the crane 

assembly site: Bill Rahmlow (the AD Director/foreman), John Schlieve (working on the crane 

body), Jeff Eick (part of the assembly crew), Randy Gilbertson (operating the Manitowoc 14,000 

assist crane), and Cleve Mozley (operating the Manitowoc 21,000 crane). Tr. 95-96. Dawes had 

also hired two oilers through the local union to help with the assembly project. Tr. 96. At the 

time Vilona arrived, the crew was trying to connect the main boom to the body of the crane (also 

known as the “car body”), a process that is called the “boom-to-foot connection.” Tr. 98. 

Schlieve explained that to make the boom-to-foot connection: “You properly rig [the boom] to 

the assist crane and . . . [o]nce we have it connected, we attach our tag lines on each end, so we 

can control it. And then when everybody is all on the same page, we lift it and swing it into 

place and pin it.” Tr. 98. He explained that “[t]his particular pinning is done hydraulically. 

There is a remote control. You have to get the section close and hook up a few hydraulic lines 

and line up the holes and insert the pins.” Tr. 99. Schlieve was in charge of making the final 

connection with the pins. Tr. 99. He was standing on the superstructure catwalk on the 

Manitowoc 21,000 crane that they were assembling. He was positioned just above the car body. 

Tr. 101. During the pinning process, Mozley was in the cab of the Manitowoc 21,000 crane. Tr. 

99. Rahmlow was located directly below Schlieve, to the left of the assist crane. Tr. 99. Jeff 

Eick was on the opposite side of the boom from Rahmlow, with a tag line. Tr. 100. One of the 

oilers was at the other end of the boom and opposite Eick with another tag line, “[t]o control 

both ends to keep it secure.” Tr. 100. 

Explaining the events of the day, Schlieve testified that it was not a windy day. Tr. 106. 

However, a sudden gust of wind came, shifting the boom directly toward the cab of the 

Manitowoc 21,000 crane where Mozley was positioned. Tr. 106-07. To avert the danger to 

Mozley, Rahmlow told Eick to pull the tag line under the boom. Tr. 107-08. Eick did so by 

moving to the other side of the boom. This was the only time that Eick moved under the boom 

throughout the entire operation. Tr. 111. When Vilona arrived at the site, Eick had already 

completed his move under the boom, and the crew had succeeded in getting the boom squared 

off. Tr. 109. Schlieve, who was only 15 feet away from Rahmlow, confirmed that he never saw 

Rahmlow positioned under the boom. Tr. 110. 

The boom-to-foot connection process can be difficult because “you only have inches to 

work with to make this connection.” Tr. 112. The lattice boom weighs 93,000 pounds. Tr. 112. 

34 FMSHRC Page 1694
Schlieve thought that the rigging involved in hoisting and positioning the boom was sufficient.6 

Tr. 112. The crew followed the manufacturer’s instruction manual for how to assemble the 

Manitowoc 21,000 crane. Tr. 111. In Schlieve’s opinion, Eick needed to move under the boom 

in these circumstances, because “it would have been more of a hazard if that boom would have 

hit or bumped the cab where [Mozley] was.” Tr. 113. By Schlieve’s estimations, the car body 

was about 10 to 11 feet above the ground and the boom was about 12 to 15 feet above the ground 

at its lowest point. Tr. 112, 114. The boom was on a direct path to hit the cab. The oiler on the 

other tag line could not use his tag line to correct and control the lattice boom. Tr. 123. Eick 

had to come under the boom and to the other side for the crew to be able to direct the boom away 

from Mozley. Tr. 123. According to Schlieve, it takes two people on a tag line, if not more, to 

control the boom. Tr. 123. Rahmlow helped pull on the tag line with Eick once Eick came to his 

side. Tr. 123-24. There were no other tag lines other than Eick’s and the oiler’s. Tr. 124, 126. 

In Schlieve’s opinion, Vilona’s interruption of the operation in the middle of this critical phase, 

caused a dangerous situation. Tr. 115-16. 

Jeffrey Eick 

Jeff Eick has been employed by Dawes for 10 years. Tr. 129. His current job title is 

driver and crew member on crane jobs. Tr. 129. He has held these positions since he began at 

Dawes. Tr. 129. 

On May 27, Eick was part of the crane assembly crew. Tr. 133. Eick’s job was to use 

the tag line to “steady the boom.” Tr. 137. Eick recounted what happened when the gust of 

wind came as follows: “[T]he [boom] started to [swing] a little bit. . . . And at that point, Bill 

said to me, get over here. And I was already on my way, because at the time the heel [of the 

boom] was going to . . . hit the cab [that Mozley was in].” Tr. 134. According to Eick, the 

decision to go under the boom was “a split decision.” Tr. 139. There was no time to reflect on 

whether it was wise. Tr. 139. As to the danger posed to him because he moved under a 

suspended load, Eick was convinced that if the rigging had failed and the boom had fallen while 

he was underneath it, the boom would not have hit him. Tr. 139-40. He explained that the boom 

would have fallen on the car body instead, which was 10 feet off the ground; he is just over six 

feet tall, so he would have had plenty of clearance. Tr. 140. Eick acknowledged, however, that 

loads fall unpredictably, implying that it is hard to argue that he would have definitely been safe 

if the boom had fallen while he was passing under it. Tr. 150. 

Eick testified that he never saw Rahmlow go under the boom, although Rahmlow was 

close to the side of the boom. Tr. 138, 150. Eick saw being under the boom and close to the 

boom as “two different things.” Tr. 150. 

6

 Eick agreed with Schlieve that all the rigging was inspected before the crew began its 

task that morning. Tr. 151. He felt that the rigging was secure for the job. Tr. 151-52. 

34 FMSHRC Page 1695
Eick was in close proximity to Rahmlow when Vilona came down to the crane assembly 

site. Tr. 142. Eick described the exchange between Vilona and Rahmlow. As he recalled, 

Vilona said: 

You’re working, standing under the boom. . . . And Bill said, no, I’m not. And 

[Vilona] said, well, your guy is. And Bill said, yes, he was; referring to myself 

because I had ran under the boom. And at that time [Vilona] wanted to kind of 

cease operation. And Bill became upset. And what [Bill’s] exact words were, I 

don’t recall. Something to the effect of: Just give me the ticket or whatever. I 

heard that part of it, because at that point, we had to make this [boom-to-foot] 

connection before we stopped. 

Tr. 142. Eick maintained that it was dangerous to stop operations right at the moment that 

Vilona arrived because the boom-to-foot connection is a critical pick. Eick continued: 

But not only that, but then if we were to stop in the middle of it, now we have a 

suspended load that is, you know, really not secured until it is pinned. So, I 

mean, we would have been open to a wind gust. It could have damaged parts on 

the crane, the cab. I mean, there is – there is a lot of things that can probably 

happen. 

Tr. 142-43. It was five to ten minutes between the time that Vilona showed up and the crew 

completed the connection process. Tr. 143. In Eick’s opinion, stopping the operation 

immediately when Vilona arrived would have “been more of a hazard than finishing the job.” 

Tr. 145-46. 

Bill Rahmlow 

Bill Rahmlow worked for Dawes for 21 years. Tr. 153. He was an AD Director at the 

time he retired,7

 and he held that position on May 27, 2010, when the citation was issued. Tr. 

153. An AD Director oversees the assembly of a crane. Tr. 153. Rahmlow had 10 years of 

experience assembling cranes. Tr. 158. Prior to that, he spent 10 years operating a crane. Tr. 

158. Rahmlow had never before set up a Manitowoc 21,000, but he had assembled a great many 

cranes during his career. Tr. 165. He testified that setting up any type of crane is essentially the 

same process. Tr. 165. As AD Director, he was responsible for making sure that the job was set 

up properly, that employees were not in danger, that people were not under the suspended load, 

that people were not in the way of pinch points, that he had an adequate number of people, and 

that the proper number of tag lines were being used. He also had to consider all variables that 

could affect the assembly, such as wind, weather, and rigging failure. Tr. 179-80. 

7

 Rahmlow retired from Dawes three weeks before the hearing. Tr. 153. 

34 FMSHRC Page 1696
 

In assembling the crane on May 27, Rahmlow closely followed the manufacturer’s crane 

assembly manual. Tr. 150. He began the Tilden Mine project in May, when he “set up the level 

pad for [the crane] . . . and [laid out] all [of its] pieces . . . in the proper order [to] make sure that 

everything [is] put together as the manual call[s] for.” Tr. 160. For the boom-to-foot 

connection, Rahmlow positioned the two men with the tag lines on opposite sides and opposite 

ends of the boom from each other. Tr. 163. Eick and Rahmlow were close to the end of the 

boom by the crane body, standing across from each other. Rahmlow positioned the oiler with 

the tag line 

towards the other end of the 150-foot boom8

, on the opposite side of the boom from Eick. Tr. 

169-70. Rahmlow maintained that the reason for having the tag lines on opposite sides of the 

boom is: 

To try to predict which way that boom is going to move. Remember, the boom is, 

like, taking a string. And whenever there is a reaction . . . – wind, gust of wind or 

movement of the other crane – that piece can swivel . . . . It’s unpredictable . . . . 

And any reaction causes another reaction. The swing of the crane can cause it, 

today, to go to the left. Tomorrow it might go to the right. 

Tr. 163.9

 Rahmlow reflected: “That day we should have had the tag line on the other two 

corners. Maybe we should have had four on. It didn’t have enough people to have four on. It 

just – it’s just the way it happened.” Tr. 164. Rahmlow maintained that the day was not windy. 

Tr. 164. He could not have predicted that there would be a wind gust. Tr. 165. When the 

counsel for the Secretary asked why Rahmlow did not request Cliffs Natural Resources for more 

men to help with the crane assembly, Rahmlow replied that he could not because “they aren’t 

familiar with it; and we never – we never ask for outside help . . . . It’s a case of liability.” Tr. 

181. 

When the gust of wind blew, Rahmlow instructed Eick to come under the boom to his 

side with the tag line because Rahmlow saw that the gust was causing the boom to head towards 

the cab. “And I did not want that boom section to hit that glass because, number one, [Mozley] 

was sitting there.” Tr. 168-69. Rahmlow acknowledged that every manual, guidebook, and 

training session forbids going under a suspended load. Tr. 192-95. However, he chose to have 

Eick come under the boom instead of signaling to the oiler to try to adjust the boom’s movement 

with his tag line because Rahmlow had never worked with the oiler before. Tr. 169. He did not 

know if the oiler would understand what needed to happen. Tr. 169. Also, Eick was 15 feet 

away from Rahmlow, whereas the oiler was almost 150 feet away. Tr. 169. Rahmlow was not 

8

 According to Rahmlow, the boom was 150 feet long and 13 feet wide. Tr. 161, 198. 

9

 The problem with Rahmlow’s set-up was that given the positioning of the tag lines, if a 

wind gust blew west to east, which is the direction it blew, neither the northeast tag line (that 

Eick was operating) nor the southwest tag line (that the oiler was operating) would be able to 

prevent the boom from swinging. Tr. 191. 

34 FMSHRC Page 1697
 

sure he could communicate effectively to the oiler. Tr. 169. Rahmlow testified that Eick coming 

under the boom with the tag line averted the hazard to Mozley. Tr. 170. He also felt that the 

hazard to Mozley was greater than the hazard to Eick. Tr. 173. 

Rahmlow described the boom-to-foot connection as being a tedious, time-consuming 

process. Tr. 166. The boom has to be lined up perfectly for the pins to go in. Tr. 166. The 

process takes a lot of concentration. Tr. 166. It is necessary to be in close proximity of the 

suspended boom. Tr. 166. Rahmlow testified that he was right next to the suspended boom, but 

not under it. Tr. 166-67, 199. It was never necessary to stand under the boom during the 

process. Tr. 167. However, he would not be able to perform the boom-to-foot connection 

operation from a distance further away from the boom. Tr. 199-200.10 

Rahmlow estimated that the road from which Vilona first observed the crane assembly 

process was 150 yards from the site. Tr. 177. He also estimated that the hill the road was on 

was 80 feet high. Tr. 177. In his experience, Vilona’s vantage point from the top of the hill was 

a bad one for observing what was actually going on at the assembly site, because Rahmlow was 

so close to the boom that anyone that far away could think he was actually under the boom. Tr. 

177-78. According to Rahmlow, to see if he was under the boom or to the side of the boom, 

someone would have to be standing “[r]ight in line with the boom.” Tr. 178. Rahmlow 

understood section 56.16009's command to “stay clear of suspended loads” to mean that if he 

was “alongside of it, [he was] not underneath it.” Tr. 189. He did not understand the standard to 

mean anything more than not being directly underneath a suspended load. Tr. 189. 

When Vilona came down to the assembly site and said Rahmlow was under the boom, 

Rahmlow replied that he was not under the boom. Tr. 170. However, he agreed with Vilona 

when Vilona said that Eick had been under the boom. Tr 170. According to Rahmlow, Vilona 

wanted to talk immediately, and Rahmlow wanted to secure the boom, in case something went 

wrong while they were talking. Tr. 171. Rahmlow could neither confirm nor deny whether he 

told Vilona that sometimes he had to go under the suspended load to make sure everything was 

lining up correctly. Tr. 183-84. He explained that he could not remember what he said in the 

heat of the moment. Tr. 184. Rahmlow stated that when Vilona tried to discuss the violation 

with him, the crew was in the middle of a critical pick. Rahmlow was concentrating on the 

connection process to get everything lined up perfectly, to make sure the boom did not hit the 

cab that Mozley was in, and to make sure that Schlieve did not get pinched. Tr. 167-68. 

Rahmlow recalled telling Vilona, “write me the ticket out.”11 Tr. 184. 

10 Schlieve agreed with Rahmlow. In his opinion, while it was possible to complete the 

boom-to-foot connection operation without working under the boom, it was not possible to 

complete the operation from a significant distance away. Tr. 113. 

11 Rahmlow also remembered Vilona suggesting that Rahmlow use mirrors so he would 

not have to work so close to the suspended load. Tr. 201-02. Rahmlow rejected that suggestion. 

He believed that mirrors would distort the image of the work zone, and he would not be able to 

34 FMSHRC Page 1698
Richard Peters 

Richard Peters has been employed by Dawes for 31 years. Tr. 204. He has held the 

position of engineer and safety manager for 25 years. As safety manager, his safety duties 

include: “keeping up with the guys’ training, supervising that they comply with regulations, 

safety policies and practices . . ., everything [of] that nature.” Tr. 204-05. 

Peters described the safety training the company provides its employees: 

We have various sort of meetings, gatherings. The other fellows have mentioned 

the annual safety meeting, which we cover very large topics, somewhat intensely. 

We have toolbox meetings where we cover small bits specifically. They’re every 

week. That’s where the guys get their check[s]. . . . We have safety memos that 

also attach to checks. We do a lot of one-on-one. [O]ne of the ways I prefer, is to 

take a guy and work with him on a specific problem or area he needs work on. 

Just work with him, teach him, train him. We have many others . . . long, 

experienced supervisors that do the same. We are very strong on taking new 

employees and putting them with somebody to give them a hands-on training. 

Tr. 207. 

Peters also explained how the company ensures compliance with safety rules. 

You watch the people constantly. . . . [Another safety department worker] and I 

will drop in on job sites . . . [and] watch them. In my case, after [the employees] 

see me, it’s too late because I’ve seen everything. I don’t show up until I have 

watched . . . [their] job [performance], see how everybody is doing; but I never 

leave without making myself known. And we . . . discuss what has happened, and 

why they’re doing a great job, [or why they] need to catch up on something. I 

might need to talk to a customer because we also train customers as well as our 

own people. And we do have our other supervisors that get out in the field. 

Equipment managers [and] branch managers, also look over job sites, and [what] 

the guys are doing when they’re out on these jobs. 

Tr. 208-09. Peters stated that the company takes these inspections, and the results of these 

inspections, very seriously, even going so far as to suspend or terminate an employee for 

violating safety rules.12 Tr. 209. 

be certain that he was directing the crane correctly. Tr. 202. 

12 Schlieve’s, Eick’s, and Rahmlow’s testimony regarding safety and training at Dawes 

supports Peters’s description of the Dawes safety and training regimen. See Tr. 79-94, 119, 130, 

154, 156, 159. 

34 FMSHRC Page 1699
Peters testified that Dawes conducted an investigation of Rahmlow’s behavior and work 

practices after the citation was issued on May 27. Tr. 211. Dawes removed Rahmlow from the 

job site, “in case he had made an infraction that was a real bad move. We didn’t want to 

jeopardize safety on the job site. So Rahmlow was removed while the investigation proceeded, 

until we found out what the real story [was].” Tr. 211. 

Peters maintained the company investigation revealed that: 

[E]verything was proceeding normally, according to plan; but that as things got 

close – and we’re talking about putting the main boom into the crane – that 

somewhere a gust of wind had come swirling around the building, and . . . the 

main boom started to swing toward the cab of the [Manitowoc] 21,000, which 

was occupied. And steps had to be taken to stop that motion and [bring] that 

section of boom back online where it belonged before any damage or injury could 

occur. 

Tr. 213. “We determined that . . . was the safest course of action considering the possibilities for 

injury and damage that were occurring at that time.” Tr. 213. The weather that day was good 

for working. Tr. 215. There was no high wind. Tr. 215. Peters agreed that staying clear of a 

suspended load is both an OSHA and an MSHA rule. Tr. 208. He believed that the rule is 

essentially the same under both agencies’ standards. Tr. 208. The company determined that 

Rahmlow understood the suspended load rule. Tr. 213. 

In response to the suggestion made by the Secretary that Rahmlow should have been 

using four tag lines instead of two, Peters noted that it is not normal industry practice to use four 

tag lines on this kind of operation. Tr. 214-15. Furthermore, there is no MSHA or OSHA 

regulation requiring that four workers each be holding a tag line during the crane assembly 

process. Tr. 230. 

THE ISSUES 

The issues are: (1) whether there was a violation, (2) if there was a violation, whether the 

violation was S&S, (3) if there was a violation, whether the violation was the result of an 

unwarrantable failure to comply with a mandatory safety standard, and (4) if there was a 

violation, the amount of the civil penalty that must be assessed for the violation, taking into 

consideration the civil penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i). 

THE VIOLATION 

As has been frequently noted, section 56.16009 requires that persons “stay clear of 

suspended loads.” 30 C.F.R. §56.16009. “The standard’s goal is to prevent persons from being 

hit by such loads through barring persons from locating within a hanging load’s possible arc or 

radius.” Haines and Kibblehouse, 30 FMSHRC 504, 517 (June 2008) (ALJ). Remaining “clear 

of suspended loads” has been widely understood to mean among other things remaining clear of 

34 FMSHRC Page 1700
the area under a load and the “area which the load would strike in falling, or after impact, in 

toppling over.” Anaconda Co., 3 FMSHRC 859, 861 (Apr. 1981) (ALJ). In short, “in order to 

comply with the cited standard and be ‘clear’ of the suspended loads, miners must not only be 

outside the limit of the point of suspension, i.e., the limit of the arc or swing of the load, should 

the load move/spin, but also must not be underneath the load or in the area that would be 

affected should the load fall.” CCC Group, Inc., 2012 WL 2175816, at *6 (F.M.S.H.R.C.) (May 

2012) (ALJ). 

In this case, there was a violation. Most obviously, Eick walked under a suspended load, 

a blatant violation of the standard. The record also supports finding that Eick, Rahmlow, and 

Mozley were in violation of the standard when standing (Eick and Rahmlow) and sitting 

(Mozley) in their positions before and after Eick walked under the suspended load. Eick stood 

about 15 to 20 feet across from Rahmlow, Tr. 126, who stood just barely on the other side of the 

boom from him. Tr. 150, 166-67, 199. Thus, Eick stood only a couple feet from the boom, 

which was 13 feet wide. Tr. 198. This was undoubtedly within the swing/arc/fall path of the 

150-foot boom. While it is true that the boom was 12-15 feet above the ground, Tr. 114, 169, 

and therefore would not have bumped into Eick or Rahmlow if the boom swung, if the rigging 

failed and the boom fell while swinging slightly, it could have fallen on Eick, given his position 

in relation to the boom. Tr. 142, 170. 

Rahmlow also failed to remain clear of a suspended load. Rahmlow stood right beside 

the boom. Tr. 150, 166-67, 199. He stood so close to the boom that only someone within 

several feet of him and aligned properly with him and the boom could tell that he was not under 

the boom. Tr. 177-78. While the company’s argument that Vilona was too far away to be able 

to be sure that Rahmlow was under the boom is persuasive,13 and while I credit the company’s 

witnesses that Rahmlow was standing right next to the boom, not under it, standing immediately 

adjacent to the boom still put Rahmlow within the suspended load’s possible arc or swing, and 

therefore in danger, and in violation of the standard. Eick, once he moved to stand by Rahmlow, 

remained in violation of the standard. Eick also stood directly adjacent to the boom at that point, 

Tr. 141, when both Rahmlow and Eick were pulling on the tag line to steady the boom. Tr. 123-

24. 

Mozley also failed to remain clear of a suspended load, although his positioning was not 

discussed by the inspector or the Secretary. Mozley’s position was the reason why Eick and 

Rahmlow felt they needed to violate the standard – given the way the tag lines were arranged, 

Mozley was in the direct swing path of the boom as the boom adjusted to the gust of wind. Tr. 

106-07. Both Eick and Rahmlow testified that had they not acted, the cab where Mozley was 

sitting would have been hit by the swinging boom. Tr. 134-35, 168-69. 

13 Vilona watched the operation from the top of an 80-foot hill, about 150 yards away 

from the assembly site, Tr. 170, with his bare eyes (no binoculars or camera), Tr. 60-61, and 

from inside the company vehicle, Tr. 60-61. Also, Vilona is not familiar with crane assembly, 

having only watched a crane being assembled a few times. Tr. 68-69, 70, 85. 

34 FMSHRC Page 1701
The company contends that Rahmlow, Mozley, Eick, and the oiler were complying with 

industry practice where they were standing, and Rahmlow testified that he could not have 

completed the boom-to-foot connection from further away from the boom, and therefore there 

was no violation. The company suggests that industry custom holds enough weight that the 

boom-to-foot connection should be an exception to the rule of staying clear of the swing and fall 

path of a suspended load. Given the intent of the regulation, to “prevent persons from being hit” 

by suspended loads, Haines, 30 FMSHRC at 517, Respondent’s argument fails. If the company 

could not complete the connection without violating the standard, it could have petitioned the 

Secretary for a modification to the standard under Section 101(c), which provides that MSHA 

may grant a modification so long as there is an alternative method for achieving the goal of the 

standard (i.e., protecting miners from suspended loads) that will guarantee no less than the same 

measure of protection to the miners as the existing standard.14 30 C.F.R. § 811(c). Without an 

authorized modification, there is no exception to the standard, and non-compliance is a violation. 

Rahmlow should have had more tag lines. He should have set up the tag lines such that the team 

would be able to control the boom no matter which direction the wind came from. Eick’s and 

the oiler’s tag lines should have been longer so that they could stand completely out of the swing 

path of the boom. Where Rahmlow and Mozley should have been positioned so that they still 

could have performed their jobs effectively while in compliance with the safety standard is a 

question that the crane assembly industry may have to address, perhaps with the Secretary. 

S&S AND GRAVITY 

An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A 

violation is properly designated S&S “if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, 

the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a 

measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will 

14 Section 101(c) states in relevant part: 

Upon petition by the operator or the representative of miners, the 

Secretary may modify the application of any mandatory safety 

standard to a coal or other mine if the Secretary determines that an 

alternative method of achieving the result of such standard exists 

which will at all times guarantee no less than the same measure of 

protection afforded the miners of such mine by such standard, or 

that the application of such standard to such mine will result in a 

diminution of safety to the miners in such mine. 

30 U.S.C. §811(c) 

34 FMSHRC Page 1702
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984) accord Buck 

Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec’y of Labor, 

861 F.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 (Aug. 1985). 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., 19 FMSHRC 1125 (Aug. 1985); U.S. 

Steel, 7 FMSHRC at 1130. 

Furthermore, the S&S nature of a violation and the gravity of a violation are not 

synonymous. The Commission has pointed out that the “focus of the seriousness of the violation 

is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S 

inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 

FMSHRC 1541, 1550 (Sept. 1996). 

I have found a violation of the cited safety standard. I further find that the employees’ 

positioning with respect to the suspended boom constituted a discrete safety hazard. As already 

discussed, there were a number of ways in which Dawes’s employees were endangered. The 

rigging could have failed and the boom fallen on Eick, or if it swung before it fell, on Rahmlow. 

The boom could have swung and hit Mozley in the cab. Eick claimed that if the boom fell as he 

was walking under it, the boom would have hit the cab and been propped up such that Eick, who 

is over six feet tall, would not have been hit. However, as Eick admitted, the boom could have 

fallen unpredictably. Tr. 150. It could have missed the cab, particularly given that there had just 

been a gust of wind, in which case the boom could have swung and fallen on Eick. 

As discussed earlier and as evident by the instant discussion, Eick, Rahmlow, and 

Mozley were all in violation of the safety standard, and that violation put each of them in 

discrete danger. Vilona found that two persons (Eick and Rahmlow) were endangered by the 

violation. Citation No. 6502467. Generally, deference is given to the inspector’s findings. See 

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc. 

v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995) (ALJ did not abuse discretion in crediting expert 

opinion of experienced inspector); and Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984). 

However, in this case, I find that three, not two, persons were affected by the violation, thus 

making the discrete safety hazard more serious. 

I also find that there was a reasonable likelihood that the hazard contributed to would 

result in an injury. I credit Inspector Vilona’s testimony that any time a suspended load is 

involved, there is a reasonable likelihood that the rigging could fail, causing the suspended load 

to swing or fall, pinning, hitting, or crushing anyone who has failed to remain clear of the 

suspended load. Tr. 40. Likewise, when working outdoors with a suspended load, the 

possibility of wind is always a factor that could reasonably result in a swinging load, as it did 

34 FMSHRC Page 1703
here, which could result in a hitting or pinning injury, or a crushing injury. See Tr. 40. Further, 

there was a reasonable likelihood that Mozley could have been hit by the swinging boom 

because of the onset of wind and his position in the cab of the Manitowoc 21,000 crane. In fact, 

as everyone agreed, in the instant situation, the boom was headed Mozley’s way, and Eick had to 

move, putting himself in danger and in direct violation of the safety standard, in order to prevent 

the boom from hitting the cab that Mozley was in. Tr. 139-40. 

Dawes maintains that the rigging was secure and unlikely to fail. Rahmlow examined the 

rigging before the crew began assembling the crane that morning. Tr. 151. He put together the 

rigging as the assembly manual instructed. Tr. 150, 160. Eick felt that the rigging was 

sufficient. He believed that it was completely secure given the load and the demands on it, Tr. 

151-52, as did Schlieve, Tr. 112. Therefore, in the minds of Rahmlow and the crew, there was 

very little chance that the rigging would fail. However, rigging does fail. See Tr. 40. One 

reason for the safety standard to stay clear of suspended loads is because suspended loads are apt 

to fall. As the Secretary pointed out, under the company’s work policy, its AD Director is 

responsible for setting up the work site to be a safe environment. As AD Director, Rahmlow had 

to consider all circumstances that could affect work site safety, such as wind or failed rigging. 

Tr. 179-80. The day was beautiful and was not windy. Tr. 164. Nevertheless, a gust of wind 

blew up that Rahmlow had not predicted, putting Mozley, Eick, and himself in danger. Tr. 106-

07, 134, 165. As the events of the day showed, injuries reasonably could have occurred. 

Finally, I find that there was a reasonable likelihood that the injuries would be of a 

reasonably serious nature. If the boom, which was 93,000 pounds, had fallen or swung and hit 

one or more of Dawes’s employees, the resulting injury or injuries would have been extremely 

serious, if not fatal. Therefore, the violation was S&S in nature. 

I also find that given the likely injuries if the feared hazard occurred, the violation was 

very serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

A citation is issued under section 104(d)(1) of the Mine Act if a violation is both S&S 

and caused by the unwarrantable failure of the operator. 30 U.S.C. § 814(d)(1). I have found 

that the violation of section 56.16009 was S&S. I also find the violation was the result of the 

company’s unwarrantable failure. 

The term “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.” Emery, 9 FMSHRC at 2203-04. 

Whether conduct is “aggravated” is determined by analyzing the facts and circumstances of the 

case and identifying whether any aggravating factors exist. Such factors include the length of 

time the violation existed, the extent of the violative condition, whether the operator was placed 

on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the 

34 FMSHRC Page 1704
violative condition, whether the violation was obvious and posed a high degree of danger, and 

the operator’s knowledge of the existence of the violation. Jim Walter Resources, Inc., 28 

FMSHRC 579 (Aug. 2006). 

The length of time the violation existed can be analyzed in two respects in this case. In 

both respects, I find that the length of time was excessive. One measurement of the length of 

time that the condition existed is the amount of time the men were in violation of the standard 

during the crane assembly operation that morning. Eick crossing beneath the 13-foot-wide boom 

probably amounted to several seconds. However, it is so dangerous to cross beneath a 

suspended load that any amount of time of being directly beneath a suspended load is excessive. 

Further, Eick and Rahmlow presumably stood alongside the boom all morning. Mozley also was 

probably in the cab much of the morning. At any time that morning, a gust of wind could have 

come, swinging the boom out of control. Or, at any time the rigging could have failed. 

Therefore, at any time the boom could have hit, pinned, or crushed the men who were in its 

swing and fall path. 

Another measurement of the length of time the condition existed is gained through 

viewing the positioning of the men as a continuing practice. Tr. 45-46. Rahmlow had been 

assembling cranes for 10 years. Tr. 158. Schlieve had been assembling cranes for at least 14 

years. Tr. 88. Eick had been working with cranes for 10 years. Tr. 129. Peters had been safety 

manager at Dawes for 25 years. The record reveals that none of these men thought “stay clear of 

a suspended load” meant anything more than not to position oneself beneath a suspended load. 

Tr. 113, 150, 189, 208. No one at Dawes understood that Rahmlow standing immediately 

adjacent to the inadequately tethered boom was a violation of the standard. It is clear that 

Dawes’s widely held and flawed belief as to what constituted compliance with section 56.16009 

existed for some time, making it an extensive violation. 

The company has a good safety record. In the previous 15 months, the company had 

never been cited by MSHA for violating the suspended load standard. Gov’t Ex. 14. Therefore, 

the company was not directly put on notice. However, the standard and its intent are clear and 

straightforward. The Secretary did not change her definition or her interpretation of the 

standard. A fundamental misunderstanding of the law is not an excuse for a violation. 

The violation was open and obvious and posed a high degree of danger. That Eick 

violated the standard in crossing beneath the suspended boom was obvious. Further, had the 

men properly understood the safety precautions they were supposed to take under the standard, 

the fact that they were positioned in violation of the standard would also have been obvious. 

Further, as concluded in the S&S discussion above, the violation posed a high degree of danger. 

Should the boom have swung into or fallen on one or more of the men, a fatal injury was 

reasonably likely to result. (The boom weighed 93,000 pounds. Tr. 112.) 

Finally, the violation occurred under the immediate and direct supervision of Rahmlow, a 

company supervisor. Given all of these factors, I find that the violation was the result of the 

company’s unwarrantable failure. 

34 FMSHRC Page 1705
This violation was also the result of the company’s high negligence. The potentially 

grave danger to its employees meant that Dawes’s management was called to a commensurately 

high standard of care. It is clearly a standard the company did not meet. 

In making unwarrantable failure and high negligence findings, I recognize that Dawes 

provided some mitigating information. Rahmlow quickly had Eick cross under the boom to 

prevent Mozley from being hit. Rahmlow tried to avert a greater danger by encouraging a lesser 

one. Tr. 113, 173. Rahmlow and the crew also made sure to abide by the standard as best they 

understood it. They did not, except for Eick, position themselves directly below the suspended 

load. Tr. 189, 208. The record also confirms that Dawes went to great lengths to train its 

employees and have refresher training sessions. The company reinforced the importance of 

safety and compliance with safety regulations, going so far as to conduct its own internal safety 

inspections. See Tr. 89-94, 97, 130, 154, 156, 159, 207-09. While the mitigating factors do not 

negate the violation or its S&S and unwarrantable natures, they will to some extent impact the 

penalty that must be assessed. 

REMAINING CIVIL PENALTY CRITERIA
 

HISTORY OF PREVIOUS VIOLATIONS
 

The Secretary conceded that Dawes has a small history of previous violations. Tr. 15. 

SIZE 

The parties agreed that the operator is of a medium size. Tr. 15. 

ABILITY TO CONTINUE IN BUSINESS 

The parties stipulated that the proposed penalty will not adversely affect the company’s 

ability to continue in business. Jt. Ex. 1; Tr. 13-14 

GOOD FAITH ABATEMENT 

No abatement requirements were made because by the time the inspector arrived at the 

assembly site, no one was positioned beneath the boom anymore. Tr. 31-33. The crew took five 

to ten minutes to complete the critical boom-to-foot connection before quitting activity and 

talking with Inspector Vilona. Tr. 143, 167-68, 171. It was necessary to complete the 

connection because if the crew had left the job half done, a 93,000-pound, 150-foot-long boom 

would have remained suspended in the air at the mercy of the wind and possible rigging failure, 

creating an even greater hazard. Tr. 115-16, 142-46. 

34 FMSHRC Page 1706
CIVIL PENALTY ASSESSMENT
 

CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT 

6502467 5/27/10 56.16009 $3,000 

I have found that the violation existed, that it was serious, and that the negligence of the 

company was high. Given these findings and the other civil penalty criteria, I would normally 

assess the penalty as proposed. However, the company’s small history of previous violations, 

which reflect its admirable internal procedures to enhance compliance and work-site safety 

warrant a lesser assessment. 

ORDER 

Within 40 days of the date of this decision, Dawes Rigging & Crane Rental IS 

ORDERED to pay a civil penalty totaling $2,500 for the violation of section 56.16009 set forth 

in citation 6502467. Upon payment of the penalty, this proceeding IS DISMISSED. 

/s/ David F. Barbour 

David F. Barbour

 Administrative Law Judge 

Distribution: (Certified Mail) 

Natalie E. Lien, Esq., U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202 

Tod T. Morrow, Brady, Esq., Morrow & Meyer, LLC, 6279 Frank Ave. NW, North Canton, OH 

44720 

34 FMSHRC Page 1707
ADMINISTRATIVE LAW JUDGE ORDERS
	
34 FMSHRC Page 1708
 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

Office of Administrative Law Judges 

721 19th Street, Suite 443
 

Denver, CO 80202-2500
 

Office: (303)844-5266/ Fax (303) 844-5268
 

July 2, 2012 

PARAMONT COAL COMPANY : CONTEST PROCEEDING 

VIRGINIA,LLC, : 

Petitioner, : Docket No. VA 2012-375-R 

: Citation No. 8190034; 03/22/2012 

 v. : 

: 

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Mine I.D. 44-07129 

Respondent. : Deep Mine # 25 

ORDER DENYING PARAMONT’S MOTION FOR SUMMARY DECISION 

This case is before me on a notice of contest and request for expedited hearing filed by 

Paramont Coal Company Virginia, LLC (“Paramont”) pursuant to Section 105(d) of the Federal 

Mine Safety and Health Act of 1977 (the “Act”). 30 U.S.C. § 801 et seq. The case involves one 

104(a) citation issued to Paramont on March 22, 2012 for an alleged violation of 30 C.F.R. § 

75.512. 

On May 25, 2012, Paramont filed a Motion for Summary Decision (“Motion”) pursuant 

to Commission Procedural Rule 67, 29 C.F.R.§ 2700.67. Also on May 25, 2012, the Secretary 

filed a Response to Contestant’s Motion for Summary Decision (“Response”) arguing that the 

matter was not appropriate for summary decision because facts remain in dispute. Subsequently, 

Paramont filed a Reply to the Secretary’s Response (“Reply”) and the Secretary filed further 

documentation on June 15, 2012. Following a conference call held on June 11, 2012, Paramont 

and the Secretary stipulated to facts that primarily address the allegations made by the inspector 

in his citation and the Secretary submitted further documents in support of her case.. 

I. BACKGROUND 

On March 22, 2012, Inspector Dennis Shortt with the Department of Labor’s Mine Safety 

and Health Administration, (“MSHA”) issued Citation No. 8190034 under Section 104 (a) of the 

Act, alleging a violation of 30 C.F.R. § 75.512. The citation arose from a nonfatal electrical 

accident that occurred when a miner was moving a trailing cable for a shuttle car and he received 

an electrical shock. The miner was knocked unconscious and was taken to the hospital where he 

was treated for burns to his hand. The miner missed one full day of work. The Condition or 

Practice section of the citation states the following: 

The section electrical equipment is not being properly m aintained. 

During an electrical accident investigation conducted on March 22, 

2012, six citations w ere issued for trailing cables that were 

inadequately protected and insula ted. One of the inadeq uately 

34 FMSHRC Page 1709
 

 

protected and insulated cables (#43 Shuttle Car, 600 volts) caused 

a miner to receive an electrical s hock and an arc burn to the pal m 

of his hand. The m iner lost [consciousness] because of the shock 

and was transported to the hospital to receive treatment. 

This citation provides notice that once-a-week electrical 

examination is not adequate to ensure the section electrical 

equipment is properly maintained. This mine cuts rock that seems 

to fracture and break creating thin, sharp and pointy edges that 

damages the cable. Additional examinations have to be conducted 

to minimize the reoccurrence of this type of accident. 

Per the authorization of the District Manager, this mine is now 

required to do two electrical examinations each calendar week on 

all section equipment with trailing cables. These examinations 

shall be recorded in an electrical examination book required by 

75.512. 

Inspector Shortt determined that an injury or illness was reasonably likely to occur and 

that such injury could result in death, that the violation was significant and substantial (“S&S”), 

that one person was affected, and that the violation was a result of moderate negligence on the 

part of the operator. 

Paramont filed a motion for summary decision asserting that the language found near the 

end of the Condition or Practice section of the citation that puts the mine on notice that it must 

inspect all trailing cables twice each week is invalid. Paramont seeks to have the citation vacated. 

The Secretary responded to Paramont by asserting that summary judgment is not appropriate in 

this circumstance because the Secretary expects that further evidence will be needed as to the 

fact of the violation, the meaning of “at least weekly,” and on the S&S finding. A penalty has not 

yet been assessed. For the reasons that follow, I deny the motion for summary decision. 

II. APPROPRIATENESS OF SUMMARY DECISION 

The Commission’s Procedural Rule 67 sets forth the grounds for granting summary 

decision as follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings , depositions, answer to 

interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summ		 ary decision as a 

matter of law 

34 FMSHRC Page 1710
 

 

The purpose of summary judgment is not to resolve disputed issues of fact, but to assess whether 

there are any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 

(1986). Though the burden of establishing the absence of genuine issues of material fact rests 

initially on the moving party, when a motion for summary judgment is made and supported, the 

nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” 

Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. 

The issues raised by Paramont extend only to the language in the citation that refers to the 

requirement to conduct an electrical examination of the trailing cables twice each week. 

Paramont suggests, as a part of its argument, that if the mine conducts one inspection each week, 

it is in compliance with the regulation. Since the Mine Act requires “frequent” examination, 

which is interpreted to mean, “at least once per week,” the mine argues that the District Manager 

has no authority to require a twice weekly exam. 

The parties filed a number of documents and pleadings, including a stipulation of facts 

not in dispute. This analysis is limited to the issue raised by Paramont, i.e., that the language 

provided at the end of the body of the citation purports to put the mine on notice that it must 

conduct two weekly examinations and that such language is invalid, thereby requiring the 

citation to be vacated. 

III. BRIEF SUMMARY OF THE ARGUMENTS 

A. Paramont’s Motion for Summary Decision 

Paramont asserts that there is no dispute of fact and that it is entitled to summary 

decision. Paramont contends that the Secretary exceeded her authority by demanding that 

Paramont conduct a second electrical examination per week, in addition to the one required by 

30 C.F.R. § 75.512. Paramont Mot. 1. Paramont argues that summary decision as a matter of law 

is appropriate pursuant to 29 C.F.R. § 2700.67(b), because there is no genuine issue of material 

fact. Id. 

Paramont submits that the inspector, per the authorization of the District Manager, acted 

outside the scope of his authority when he ordered Paramont to conduct two electrical 

examinations each week. Id. at 2. Section 305(g) of the Act states that “[a]ll electrical equipment 

shall be frequently examined, tested, and properly maintained by a qualified person to assure safe 

operating conditions.” Id. at 1. The term “frequently” has been interpreted to mean “at least 

weekly.” Id. at 2. Consequently, Paramont argues that a District Manager does not have the 

authority to effectively amend the Act and require two inspections. 

B. Secretary of Labor’s Response 

The Secretary argues that there are factual issues that must be resolved, so Paramont is 

not entitled to summary decision. Sec’y Resp. 4. The Secretary takes the position that the issue 

of requiring more than a once a week inspection must be done on a case-by-case basis and is 

34 FMSHRC Page 1711
heavily dependent on the facts of each case. Id. The Secretary argues that the frequency of 

inspections should be read in light of whether or not the mine is effectively maintaining safe 

operating conditions. Id. 

C. Paramont’s Reply 

Although the Secretary alleges that there are factual issues that need to be resolved, the 

Secretary offers nothing to support this assertion. Paramont Rep. 1. Paramont contends that the 

issue is not whether the facts in the case justify the action taken, but rather whether the Secretary 

can legally take such action. Id. Consequently, Paramont argues that because the Secretary has 

no discretion to require a second examination under any circumstance, regardless of the facts, 

there is no need for a hearing and summary decision is appropriate. Id. at 2. 

D. Secretary’s Supplemental Response 

Following a conference call with the parties, the Secretary agreed and stipulated to the 

facts surrounding the violation as described in the inspector’s citation, supra. The submission of 

the Secretary includes a declaration by Jason Lane, the electrical supervisor for MSHA coal 

district 5. The stipulations, together with Lane’s declaration, explain the basis for the violation 

described in the citation, as well as the designation of the violation as S&S. Lane’s declaration 

explains that the mine was put on notice to conduct more than one weekly inspection but Lane 

does not address the precise language requiring two weekly examinations. The Secretary argues 

that, given the circumstances surrounding this violation, the mine must conduct more than one 

weekly examination in order to comply with 30 C.F.R. § 75.512. 

E. Stipulations 

The parties submitted the following stipulations: 

1. This proceeding involves one 104(a) citation, No. 8190034, that was issued by the 

Federal Mine Safety and Health Administration (“MSHA”) at Paramont Coal Company’s 

Deep Mine #25. 

2. Paramont Coal Company was an "operator" as defined in §3(d) of the Federal Mine 

Safety and Health Act of 1977, as amended (hereinafter "the Mine Act"), 30 U.S.C. 

§803(d), at the Deep Mine #25 on the date that the citation involved in this proceeding 

was issued. 

3. Operations of Paramont Coal Company at the Deep Mine #25 are subject to the Mine 

Act. 

4. The Federal Mine Safety and Health Review Commission and the Administrative Law 

Judge assigned to this matter have jurisdiction to hear and decide this proceeding 

pursuant to Sections 105 and 113 of the Act. 

5. MSHA Inspector Dennis Short was acting in his official capacity and as an authorized 

representative of the Secretary of Labor when the citation at issue in this proceeding was 

issued. 

6. A true copy of Citation No. 8190034 at issue in this proceeding was served on Paramont 

Coal Company or its agent as required by the Mine Act. 

34 FMSHRC Page 1712
 

7. Government Exhibit 1 is an authentic copy of Citation No. 8190034, with all 

modifications, and may be admitted into the record for the purpose of establishing its 

issuance and not for the purpose of establishing the accuracy of any statements asserted 

therein. 

8. The Deep Mine #25 operates two continuous miner super sections, the 001/002 and 

003/004 sections. 

9. Both sections operate two continuous miners. 

10. The 001/002 section operates various pieces of mobile electrical equipment, including; 

continuous mining machines, roof bolters and shuttle cars. 

11. The electrical equipment being operated on the 001/002 section receives power from a 

section power center via trailing cables. 

12. On March 22, 2012, a nonfatal electrical shock accident occurred at the Deep mine #25 

when David Mondrage, who was working as a Section Foreman, handled the trailing 

cable for a shuttle car and received an electrical shock. 

13. Mr. Mondrage suffered burn injuries to his hand. 

14. Mr. Mondrage was taken to the hospital for treatment and was released. 

15. The accident occurred on a Thursday. Mr. Mondrage missed work on Friday, March 23, 

due to the accident and returned to work on Monday, March 26, 2012. 

16. Government Exhibit 2 is a photograph of a section of the type of trailing cable being 

utilized on the 001/002 section and may be admitted into the record. 

17. Government Exhibit 3 is a photograph showing the damaged section of the trailing cable 

believed to be the source of the electrical current that resulted in the electrical shock 

received by Mr. Mondrage and may be admitted into the record. 

18. Following the above accident, MSHA conducted an investigation that included 

examination of all trailing cables on the 001/002 section. 

19. MSHA’s investigation found that the shock was caused by a pin hole opening in the 

insulation of the cable that the victim handled. 

20. The cable was carrying 600 volts. 

21. Six of the eight trailing cables being used on the 001/002 section has damaged places to 

the cable insulation. 

22. Government Exhibit Nos. 4 through 9 are accurate copies of citations that were issued by 

MSHA citing each of the inadequately maintained trailing cables and may be admitted 

into the record. 

23. Following its investigation of the accident and examination of all trailing cables on the 

section, MSHA issued Citation No. 8190034 alleging a violation of 30 CFR §75.512. 

24. Government Exhibit 10, 19 pages, is an accurate copy of reports of weekly examinations 

of electric equipment for the 001/002 section for the period from March 22 through May 

31, 2012. 

25. Government Exhibit 11, 19 pages, is an accurate copy of reports of weekly examinations 

of electric equipment for the 003/004 section for the period from March 22 through May 

31, 2012. 

34 FMSHRC Page 1713
IV. DISCUSSION 

Inspector Shortt issued a citation to Paramont for a violation of Section 75.512 which 

requires that “[a]ll electric equipment shall be frequently examined, tested, and properly 

maintained by a qualified person to assure safe operating conditions.” Section 75.512-2 defines 

the term “frequently” to mean that the examinations and tests required by Section 75.512 “shall 

be made at least weekly.” 

The citation was issued as a result of an electrical accident in which a miner was handling 

a 600 volt cable with a pin hole opening in the insulation and outer jacket. Stip.19, Lane Decl. 

¶¶ 11 and 12. The miner was knocked unconscious, suffered burns to the hand and was 

hospitalized as a result. The mine had been conducting weekly examinations of the trailing 

cables, as well as other electrical equipment, but when the cables were examined by MSHA 

following the accident, six of the eight cables were damaged. Stip. 21, Lane Decl.¶ 20. As a 

result, MSHA determined that it would put the mine on notice that, in the future, more than one 

weekly examination was necessary. Lane Decl. ¶ 24. 

The fact of the violation is confirmed by the stipulations submitted by the parties but 

Paramont argues that the facts surrounding the violation are not important. Specifically, it argues 

that the Secretary, as a matter of law, is not authorized to require the mine to examine electrical 

equipment twice per week. I first note that the language Paramont objects to is not a part of the 

description of the actual violation. Rather, it is framed as a notice to the operator, based on the 

actual violation, that a “once-a-week electrical examination is not adequate to ensure that the 

section electrical equipment is properly maintained.” The final paragraph in the body of the 

citation sets the frequency of future examinations at twice per week. I agree with the operator 

that the District Manager cannot unilaterally dictate the precise number of examinations to be 

conducted by Paramont and that, if Paramont were cited in this particular case for failing to 

conduct two inspections, the citation would fail. However, again, with respect to this particular 

citation, Paramont was not cited for failing to conduct two examinations of equipment and was 

instead cited for not conducting a sufficient number of examinations to assure safe operating 

condition of the trailing cables. There is no question that the cable that resulted in the injury, and 

six out of the eight cables used on the section, were not in safe operating condition. The trailing 

cables contained “one or more damaged places” thereby exposing miners to a shock hazard. 

Lane Decl. ¶ 20. Evidently the damage to the cables is caused when the mine cuts into sandstone 

rock that breaks into sharp pieces. Lane Decl. ¶ 22. 

The Secretary argues that Section 75.512-2 must be read to mean that the frequency of 

examinations must be sufficient to establish “safe operating condition.” I agree with the 

Secretary that the standard has a two-fold requirement and that it may be necessary in some 

instances for the mine operator to conduct more than one examination. The standard requires 

“frequent” examinations, which translates into “at least once weekly.” The term is not 

ambiguous. It is clear that the mine must, at a minimum, conduct an examination once each 

week. If the standard had been intended to require only one examination per week, common 

sense dictates that it would have been clearly constructed to indicate such. Instead the standard, 

75.512-2, uses the qualifying language “at least,” which is has the same meaning as “at a 

34 FMSHRC Page 1714
 

 

 

minimum” Therefore, if the minimum is not enough to assure safe operating conditions, it is up 

to the mine operator to conduct further examinations of electrical equipment. 

Paramont argues that, under the plain terms of the standard, the mine is required to 

conduct one electrical exam every week. The Secretary agrees that, a minimum of one exam is 

required, but further argues that, in some instances, more than one is required. Paramont reasons 

that one exam alone always meets the requirements of the standard and argues that “under the 

plain terms of the relevant standards, an operator complies with § 75.512 . . . as long as it 

conducts at least one electrical exam every week.” Paramont Mot. 7. The mine’s reasoning fails 

to consider the obvious intention of the standard, as well as the meaning of “at least” once per 

week. An operator does not necessarily comply with the standard by conducting an examination 

once a week, as is evidenced by the facts in this case. Clearly, given the accident that occurred in 

this instance, at least more than one examination was needed to assure safe operating conditions. 

Accordingly, in this case, the one examination alone did not meet the requirements of the 

standard. 

Certainly the stipulation of fact, taken with the inspector’s declaration, supports the fact of 

the violation and the significant and substantial nature of the violation. However, the Secretary 

did not seek summary decision on that issue but limited the case to the issues raised by 

Paramont. The issue presented by Paramont, is whether the language near the bottom of the 

citation, requiring two examinations in the future, is unacceptable, thereby requiring that the 

citation be vacated. While I find that the Secretary may not cite the operator for its failure to 

conduct specifically two examinations, she may cite the operator for failing to conduct enough 

examinations if the examinations that were conducted did not assure safe operating conditions. 

The language following the violation in the citation is not a part of the alleged violation and its 

inclusion is not a basis to vacate the citation. 

I find that the violation of section 75.512 is accurately cited as set forth in the citation. 

The mine is required by the standard to conduct a minimum of one inspection per week, but if 

that is not sufficient to maintain the equipment safely, more examinations are required. The mine 

may need to make two electrical examinations each week or it may require two each day. Each 

citation or order issued under this standard must be evaluated based on the conditions present at 

the time. In any event, it is up to the mine operator to conduct sufficient inspections to insure that 

the equipment is maintained in the proper condition. A failure to assure safe operating conditions 

can be, and in this case was, cited by the Secretary. 

34 FMSHRC Page 1715
 

 

 

 

V. ORDER 

Having considered all of the documents, briefs, exhibits and stipulations, I find that the 

citation was properly issued and that the language near the end of the violation relating to 

requiring two inspections per week does not merit vacating the citation. Therefore, Paramont’s 

motion for summary decision is DENIED. While the Secretary has not moved for summary 

decision, it seems that, given the documents submitted, the only matter that remains is the issue 

of the appropriate penalty for the violation. The parties are ORDERED to contact the court 

within ten days to schedule a conference call to discuss how the case will proceed from this 

point. 

/s/ Margaret A. Miller 

 Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Daniel Wolff, Crowell & Moring, LLP, 1001 Pennsylvania Ave., Washington, DC 20004-2595 

Robert Wilson, Office of the Solicitor, U.S. Dept. of Labor, 1100 Wilson Blvd, 22nd Floor West, 

Arlington, VA 22209 

34 FMSHRC Page 1716
 

 

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9953 / FAX: 202-434-9949
 

July 6, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING: 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEVA 2011-940 

Petitioner, : A.C. No. 46-01968-000243606-01 

:

 : Mine: Blacksville No. 2 

v. :

 :

 :

CONSOLIDATION COAL CO., :

 Respondent. : 

ORDER REQUESTING INFORMATION
 

AND
 

RULINGS ON MOTIONS TO COMPEL
 

This civil penalty proceeding arises under section 105 of the Mine Act. 30 U.S.C. §815. 

The case is scheduled to be heard in Morgantown, West Virginia beginning on Tuesday, August 

7, 2012 at 8:30 a.m. At issue are one section 104(d)(2) (30 U.S.C. §814(d)(2)) order of 

withdrawal and four section 104(a) citations. 30 U.S.C. §814(a). The order and one of the 

citations allege that Consolidation Coal Company (“Consol”) violated mandatory safety standard 

30 C.F.R. §75.202(a) at its Blacksville No. 2 Mine [1], while three of the citations allege that 

Consol violated §75.220(a)(1) at the mine.2 In addition to alleging a violation of section 

75.202(a), the order and one of the citations charge that the alleged violations were a significant 

and substantial contribution to a mine safety hazard (“S&S”). The order also charges that the 

violation was caused by Consol’s unwarrantable failure to comply with the standard. In addition 

to alleging a violation of section 75.220(a)(1), one of the other citations alleges that the violation 

was S&S. The Secretary seeks a total civil penalty of $67,200.00 for the alleged violations. 

Pending before the Court are several matters relating to the proposed penalties and to discovery 

disputes. 

1 Section 75.202(a) requires an operator to support or otherwise control the roof, face 

and ribs of areas where persons work or travel so as to protect the persons from falls of the roof 

face or ribs and from coal and rock bursts. 

2 Section 75.220(a)(1) requires an operator to adopt and to follow a roof control plan 

approved by MSHA. 

34 FMSHRC Page 1717
 

I. THE PROPOSED PENALTIES
 

It is not clear to the Court how the Secretary arrived at the proposed penalties. Although 

paragraph 5 of her petition purports to explain the Secretary’s calculations, the Court finds it 

difficult, if not impossible, to comprehend what the Secretary has done. For example, although 

the petition asks its reader to “See MSHA Form 1000-179 in Exhibit A for a detailed summary of 

point computations,” there is no form that is identified as Form 1000-179 in the copy of Exhibit 

A the Secretary filed with the Commission. Further, although paragraph 5 refers to 

“[C]itations/orders assessed pursuant to 30 C.F.R. §100.5, which are indicated as ‘Special 

Assessment’ in Exhibit A,” there is no indication in the exhibit that any assessment is a “special 

assessment.” 

Before the case can be tried the Court needs to understand how the Secretary determined 

the penalties she proposed. Accordingly, within 15 days of the date of this order, the Court 

requests the Secretary file a narrative explanation of how each proposed penalty was calculated, 

including the part each of the statutory civil penalty criteria played in the calculation. The Court 

is especially interested to know why the Secretary determined the alleged violation of section 

75.202(a) set forth in the order warrants a proposed penalty of $50,700. In short, the Court 

needs to be “walked through” the Secretary’s proposed assessment process. 

II. DISCOVERY MATTERS 

The Court is in receipt of Consol’s Motion to Compel Discovery. In the motion Cosol 

states that although the Secretary requests that “specially assessed penalties be levied against 

Consol with respect to each alleged violation” – something that as noted is not apparent to the 

Court from the present record – the Secretary’s petition “offers no substantive basis for its 

decision to propose a specially assessed penalty with respect to each citation in the docket.” 

Consol Mot. at 2, 3. The motion goes on to state that on April 20, 2012 Consol through a 

discovery request sought certain information related to the specially assessed penalties, including 

but not limited to the Special Assessment Review Forms (“SAR Forms” or MSHA Forms 7000-

32) and that the Secretary responded by withholding the information because she claims it is 

protected by the deliberative process privilege. 

Consol also states that while the Secretary produced some documents regarding her 

special assessment procedures, these documents “offered no substantive basis with respect to 

each specially assessed penalty.” Id. Consol Mot. at 4. Consol further states that the Secretary 

“declined to identify and provide data regarding how many citations and orders alleging 

34 FMSHRC Page 1718
 

violations of Sections 75.202 and 75.202(a)(1) have been specially assessed, both nationwide 

and in [MSHA] District 3, since the inception of the “Rules to Live By [I]nitiative” (the 

“Initiative”).3 Id. 

3 In pertinent part the Initiative states: 

“Rules to Live By” is an initiative to improve the 

prevention of fatalities in mining. Through a first 

phase of industry outreach and education followed 

by enhanced enforcement, the focus will be on 24 

frequently cited standards (11 in coal mining and 13 

in metal/nonmetal mining) that cause or contribute 

to fatal accidents in the mining industry in 9 accident 

categories. 

In 2009, mining fatalities fell to an all-time low for 

the second straight year. While the mining community 

achieved a record-setting low of 34 mining deaths in 

the United States and has seen a significant decline in 

fatal mining accidents during the past 10 years, too 

many miners still lose their lives in preventable 

accidents. The loss of even one miner causes 

devastation and pain to the victim's family and 

friends. From CY 2000 - 2008, 589 miners lost their 

lives, mostly in single and double fatality accidents. 

MSHA analyzed these fatal accidents to identify 

conditions and practices that contributed to the 589 

deaths, safety standards violated, root causes, and 

abatement practices. MSHA's analysis identified 

24 standards - 13 in metal and nonmetal mining 

and 11 in coal mining - frequently cited in fatal 

accident investigations. These violations fell 

into 9 different categories: 

* * * 

PRIORITY STANDARDS: COAL 

§75.202* Roof, face, and ribs shall be supported and 

no person shall work or travel under unsupported roof 

§75.220(a)(1) Develop and follow approved roof control plan 

* * * 

(continued...) 

34 FMSHRC Page 1719
Consol argues that documents related to the specially assessed penalties are relevant in that the 

Secretary has requested the court to impose such penalties. Because the SAR Forms contain 

facts that MSHA relied upon to support its specially assessed penalties, Consol asserts it is 

entitled to the forms.4 Consol Mot. at 5. Moreover, according to Consol, even if the forms were 

once protected by the deliberative process privilege, they lost the protection once the 

recommendations they contain were adopted by the Secretary as the agency’s position. Consol 

Mot. at 6-7. 

Consol also argues that it is entitled to data concerning all of the citations and orders 

alleging violations of sections 75.202 and 75.220(a)(1) that have been specially assessed in order 

to determine whether the Initiative is a binding norm and therefore a substantive rule requiring 

notice-and-comment rulemaking to be valid. Although the Secretary objects that this request is 

irrelevant and burdensome, Consol maintains that it is correctly attempting to prove that the 

Initiative is a substantive rule and therefore was improperly implemented. Consol Mot. at 9-10. 

The Secretary responded to Consol’s motion by filing her own motion to compel. She 

wants Consol to answer supplemental interrogatories and to supply documents requested by her 

on May 11, 2012. She asserts that Consol’s responses were due on June 8, but that Consol’s 

counsel stated that he “[was] not inclined to answer any supplemental discovery responses until 

[Consol’s] Motion to Compel has been ruled on.” Sec’s Mot. at 2. The Secretary asserts that 

there is no relation between the two motions and seeks a ruling that Consol be compelled to 

answer as required by the Commission’s rules. Id. 

The Court has little patience with this kind of tit for tat. It agrees with the Secretary that 

the matters are not related and orders Consol to respond to the Secretary’s Supplemental 

Interrogatories/Documents Requests within 15 days of the date of this Order. 

As for the SAR forms, if the alleged violations are proven, the Court must assess civil 

penalties de novo based on its consideration of the six penalty criteria set forth in section 110(I) 

of the Act. Sellersburg Stone Co., 5 FMSHRC 287. 292 ) (March 1982). Therefore, the Court 

would view the SAR forms as irrelevant to the issues at hand except for the fact that if the Court 

3

(...continued)
 

*Includes All Supbarts
 

Rules to Live By (last visited June 14,2012), http://www.msha.gov/focuson/RulestoLiveBy 

/RulestoLiveByI.asp 

4

 As Commission Administrative Law Judge Michael Zielinski explained, “Under the 

[Rules To Live By Initiative] all violations of [the specified] standards are forwarded for 

consideration of special assessment. [A SAR] form typically consists of an initial 

recommendation by the issuing inspector, with a short, typically factual, narrative, and 

concurrences or oppositions of supervisors indicated by a check in a box, which may be 

accompanied by comments.” Big Ridge Inc., (Order Granting In Part and Denying In Part 

Respondent’s Motion to Compel), slip op. at 1, Docket No. LAKE 2011-716 (March 16, 2012). 

34 FMSHRC Page 1720
 

 

 

assesses a penalty that “substantially diverges” from that which is proposed by the Secretary, the 

Commission requires the Court to explain the variance. Hubb Corporation, 22 FMSHRC 606, 

612 (May 2000) (quoting Sellersburg, 5 FMSRHC at 293). The Court can hardly do so if it does 

not understand the basis for the Secretary’s proposal. Likewise, Consol can hardly show a 

variance is warranted without knowing the basis. The Court recognizes, however, that there may 

indeed be valid deliberative process concerns that arise when viewing the forms. For example, 

they may contain comments by MSHA personnel concerning the pros and cons of issuing a 

special assessment. Like other judges who have considered the matter (see e.g., Big Ridge Inc. 

at 2), the Court orders the Secretary to submit the SAR forms sought by Consol to the Court for 

its in camera review. The forms must be submitted within 15 days of the date of this order. The 

Court will rule as to those parts of the forms which are protected by privilege. The Secretary 

will then be directed to redact such parts and to send the redacted copies to Consol. 

The Court is not disposed to entertain any issues pertaining to whether the Initiative is a 

substantive rule requiring notice and comment rulemaking. The Court views such questions as 

far outside the bounds of what is essentially a garden variety civil penalty proceeding, albeit with 

at least one unusually high proposed penalty. Therefore, the Court denies Consol’s motion to 

compel production by the Secretary of data respecting the number of alleged violations of 

section 75.202 and 75.202(a)(1) that were specially assessed both nationally and in MSHA 

District 3 since implementation of the Initiative. 

/s/ David F. Barbour 

David Barbour 

Administrative Law Judge 

Distribution: (1st Class U.S. Mail) 

Bryan C. Shieh, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence 

Mall West, Suite 630E, Philadelphia, PA 19106 

Patrick W. Dennison, Esq.; R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 

Suite 1340, 401 Liberty Ave., Pittsburgh, PA 152222 

/sa 

34 FMSHRC Page 1721
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

July 16, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA) : Docket No. WEST 2010-450-M 

Petitioner, : A.C. No. 02-03243-203823 (NWB) 

: 

v. : Mine: Drake Quarry 

: 

RECON REFRACTORY & : 

CONSTRUCTION, INC. : 

Respondent. : 

ORDER GRANTING SECRETARY’S MOTION FOR PARTIAL 

SUMMARY DECISION ON THE ISSUE OF JURISDICTION 

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”) against RECON Refractory & Construction, Inc. (“RECON,” 

“the company,” or “Respondent”) on February 18, 2010, pursuant to section 105 of the Federal 

Mine Safety and Health Act of 1977 (“the Mine Act” or “the Act”), 30 U.S.C. § 815. RECON 

timely filed an answer after which this case assigned to me. The parties thereafter complied with 

my prehearing order. This case is now set for hearing on July 17–18, 2012, in Riverside, 

California. On June 22, 2012, the Secretary filed her motion for partial summary decision, given 

RECON’s challenge to her claims of jurisdiction. RECON filed its opposition on June 29, 2012. 

I. STATEMENT OF THE CASE AND ISSUES 

The Secretary issued RECON six citations under section 104(a) of the Mine Act alleging 

violations of health and safety standards pursuant to regulations applicable to surface metal and 

nonmetal mines. See 30 C.F.R pt. 56. In its answer to the petition, RECON, a contractor 

performing construction work, denied that the subject facility was a mine as defined in the Act. 

The Secretary filed her motion for partial summary decision on the jurisdictional issue, arguing 

that the cement facilities under construction at the Drake Quarry site fall within the jurisdiction 

of the Mine Act. RECON opposes the motion, arguing that during the period when the citation 

was issued, the Mine Safety and Health Administration (“MSHA”) did not have jurisdiction over 

the site. 

Commission Rule 67 provides the standard for granting any motion for summary 

decision: 

A motion for summary decision shall be granted only if the entire record, 

including pleadings, depositions, answers to interrogatories, admissions, and 

34 FMSHRC Page 1722
 

 

affidavits, shows: (1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a matter of law. 

29 C.F.R. § 2700.67(b). The Commission – 

“has long recognized that [] ‘summary decision is an extraordinary procedure,’” 

and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under 

which “the Supreme Court has indicated that summary judgment is authorized 

only ‘upon proper showings of the lack of a genuine, triable issue of material 

fact.’” 

Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining 

Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary decision, 

Commission Judges must evaluate the evidence in “‘the light most favorable to . . . the party 

opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia 

Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “‘drawn from the underlying facts 

contained in [the] materials [supporting the motion] must be viewed in the light most favorable 

to the party opposing the motion.”’ Hanson Aggregates, 29 FMSHRC at 9 (quoting United 

States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

The issues before me are whether the Secretary has met the elements for summary 

decision by establishing that a new cement processing site still under construction falls under the 

Mine Act’s jurisdiction. For the reasons that follow, the Secretary’s motion is GRANTED. 

II. FINDINGS OF FACT 

On April 6, 2009, MSHA assigned a mine identification number to Drake Quarry, a 

surface metal/nonmetal mine owned by Drake Cement Company (“Drake”) and located near 

Paulden, Arizona.1

 (Statement of Material Facts in Support of Secretary of Labor’s Motion for 

Partial Summary Decision (“Sec’y Statement of Material Facts”) at ¶ 3; Respondent’s 

Opposition to Secretary of Labor’s Motion for Partial Summary Decision (“Resp’t Opp’n”) at 2; 

Respondent’s Response to Secretary of Labor’s Statement of Material Facts in Support if its 

Motion for Partial Summary Judgment (“Resp’t Resp.”) at 1.) On October 6 and 7, 2009, 

MSHA Inspector Enrique Vidal conducted a routine health and safety inspection of the Drake 

Quarry site. (Sec’y Statement of Material Facts at ¶ 1; Resp’t Opp’n at 1; Resp’t Resp. at 1.) On 

October 8, 2009, MSHA Inspector Kyle Griffith continued the inspection of the Drake Quarry 

site. (Sec’y Statement of Material Facts at ¶ 2; Resp’t Resp. at 1.) 

At the time of the inspection, what is currently the Drake Quarry mine site was still under 

construction and was over 60% completed. (Sec’y Statement of Material Facts at ¶ 4; Resp’t 

Resp. at 1; Resp’t Opp’n at 2.) The Drake Quarry mine site and adjoining facilities were brand 

1

 Respondent notes that MSHA issued the mine identification number in the middle of 

construction and only after a couple of accidents had occurred at the site. (Resp’t Opp’n at 2.) 

34 FMSHRC Page 1723
new and had never before been in production. (Resp’t Opp’n at 1.) About 300 workers were 

working at the construction site.2 (Sec’y Statement of Material Facts at ¶ 4.) The mine was to be 

a large cement processing facility that produced Portland cement once it opened. (Sec’y 

Statement of Material Facts at ¶ 5; Resp’t Resp. at 2; Decl. of Lawrence R. Nelson, Attach. A.) 

The adjacent quarry itself had not yet been constructed. (Resp’t Opp’n at 2.) No miner hours 

had been recorded at the Drake Quarry site at the time of the October 2009 inspection. (Id.) 

While the Secretary alleges the projected date to begin operations was May 2010 (Sec’y 

Statement of Material Facts at ¶ 12), the plant did not in fact record any miner hours until the 

first quarter of 2011. (Resp’t Opp’n at 3.) 

RECON was hired by CCC Group as a subcontractor to build a facility on the 

construction site. (Sec’y Statement of Material Facts at ¶ 6; Resp’t Opp’n at 2; Resp’t Resp. at 

2.) During the October 2009 inspections, the Secretary’s inspectors issued RECON seven 

citations, five of which are still contested.3 (Sec’y Statement of Material Facts at ¶¶ 7, 8; Resp’t 

Resp. at 2.) Throughout the settlement negotiation process, RECON has continuously denied 

that MSHA had jurisdiction over the mine site at the time of the inspection. (Sec’y Statement of 

Material Facts at ¶ 9; Resp’t Resp. at 2; see, e.g., Answer at ¶¶ 1, 2; Respondent’s Response to 

Secretary of Labor’s Interrogatories, Set Number One, Interrogatory No. 5, dated November 15, 

2011; Response to Secretary of Labor’s Motion to Compel Discovery, dated November 16, 2011 

2

 The Secretary refers to the workers at the mine site as “miners”; Respondent disputes 

that they are miners based on its argument for no jurisdiction. I note that the Act’s legislative 

history defines miners as including construction workers at a mine site, stating: 

The definition of mine “operator” is expanded to include “any independent 

contractor performing services of construction at such mine.” It is the 

Committee’s intent to thereby include individuals or firms who are engaged in 

construction at such mine, . . . , under contract or otherwise, . . . and to make clear 

that the employees of such individuals or firms are miners within the definition of 

the Federal Mine Safety and Health Act of 1977. 

S. Rep. No. 95-181, 95th Cong., 1st Sess., at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 

3414, and in Legislative History of the Federal Mine Safety and Health Act of 1977 at 602 

(1978). Nonetheless, I need not reach this issue because it is neither before me, nor is it relevant 

to a determination on the jurisdictional question at hand. 

3

 Of the seven original citations the company chose to contest six of them, choosing to 

accept Citation No. 6453942. (Secretary’s Motion for Partial Summary Decision and 

Memorandum of Points and Authorities (“Sec’y Motion”) at 6; Sec’y Statement of Material 

Facts at ¶¶ 7, 8; Resp’t Resp. at 2.) Later, the company withdrew its contest of Citation No. 

6453944, one of the remaining six contested citations, leaving five citations before me. (Id.) 

RECON’s acceptance/payment of these citations has no bearing on my ruling regarding 

jurisdiction. 

34 FMSHRC Page 1724
at ¶ 5.)4

 However, RECON acknowledges that MSHA would have jurisdiction over the mine 

once the facility went into operation. (Sec’y Statement of Material Facts at ¶ 10; Resp’t Resp. at 

2; see, e.g., Answer at ¶ 2; Respondent’s Response to Secretary of Labor’s Interrogatories, Set 

Number One, Interrogatory No. 5, dated November 15, 2011.) 

I determine that the parties agree on all the relevant facts on the question of jurisdiction. 

Therefore, there is no genuine issue of material fact as to the question of jurisdiction. 

III. GENERAL PRINCIPLES OF LAW 

The Mine Act defines a “coal or other mine” in section 3(h)(1) as: 

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to be used in, or resulting from, 

the work of extracting such minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers underground, or used in, or to be used in, 

the milling of such minerals, or the work of preparing coal or other minerals, and 

includes custom coal preparation facilities. In making a determination of what 

constitutes mineral milling for purposes of this chapter, the Secretary shall give 

due consideration to the convenience of administration resulting from the 

delegation to one Assistant Secretary of all authority with respect to the health 

and safety of miners employed at one physical establishment. 

30 U.S.C. § 802(h)(1) (emphasis added). 

The Act defines an “operator” as “any owner, lessee, or other person who operates, 

controls, or supervises a coal or other mine or any independent contractor performing services or 

construction at such mine.” 30 U.S.C. § 802(d). 

4

 I note that in the body of Respondent’s Opposition to Secretary of Labor’s Motion for 

Partial Summary Decision it “move[d] the Review Commission to disregard all mention of [the 

e-mail communications between it and the Secretary].” (Resp’t Opp’n at 5.) I agree that 

substantively the communications are irrelevant to this decision. However, I disregard this 

request in Respondent’s Opposition because Commission Procedural Rule 10 requires that “[a]n 

application for an order shall be by motion which, unless made during a hearing or a conference, 

shall be made in writing and shall set forth the relief or order sought.” 29 C.F.R. § 2700.10(a). 

Burying the request in its Opposition to the Secretary’s motion does not meet these 

requirements. 

34 FMSHRC Page 1725
IV. DISCUSSION AND ANALYSIS 

A.	 Summary of the parties arguments. 

The Secretary contends that the Drake Quarry construction site meets the definition of a 

mine as defined in section 3(h)(1) of the Act. (Sec’y Motion at 1.) The Secretary argues (1) that 

the legislative history of the Act gives guidance to interpret jurisdiction broadly, giving 

preference to there being jurisdiction under the Act should there be any doubts as to jurisdiction 

(id. at 7); (2) that Respondent acknowledges when construction is completed Drake Quarry will 

be a mine under the definition of section 3(h)(1) and subject to MSHA jurisdiction (id. at 13); 

(3) that courts have widely held that cement facilities fall under the jurisdiction of the Mine Act 

and not the Occupational Safety and Health Act (“OSH Act”) in keeping with the Interagency 

Agreement between MSHA and the Occupational Safety and Health Administration (“OSHA) 

(“Interagency Agreement”), see Mine Safety and Health Administration and the Occupational 

Safety and Health Administration Interagency Agreement, 44 Fed. Reg. 22,827-22,830 (Apr. 17, 

1979) (“Interagency Agreement”); (Sec’y Motion at 9, 11); and (4) that RECON is subject to 

MSHA jurisdiction as an “operator” (Sec’y Motion at 8). 

RECON claims, on the other hand, that MSHA lacked jurisdiction to conduct an 

inspection of the Drake Quarry facility and had no authority to issue citations to the company. 

RECON primarily argues that no Mine Act jurisdiction existed at the time the citations were 

issued because (1) the Drake Quarry cement processing facility was not yet in operation, (2) the 

adjoining quarry was not yet constructed, and (3) the State of Arizona should have jurisdiction as 

a “State Plan” state under the OSH Act. As discussed below, Respondent’s arguments are 

inapposite and therefore fail. 

B.	 Mine Act definitions and analysis of the relevant case law. 

Under the Mine Act, to be a “mine” that MSHA has the authority to inspect, where 

MSHA may identify violations, and to which MSHA may issue citations, a site must be a 

“structure,” “facility,” or “other property” that is “used in, or to be used in, the milling of . . . 

minerals.” 30 U.S.C. § 802(h)(1). To be a mine, a site must satisfy each of the location 

(“structure,” “facility,” or “other property”), functional (“used in . . . the milling of . . . 

minerals”), and temporal (“used in, or to be used in”) components. 

1.	 The Commission and courts have held that the definition of a “mine” 

under the Mine Act should be interpreted broadly. 

Here, the question at issue is whether a brand new cement processing site – a site that 

was still under construction and that had never logged any miner hours nor produced any cement 

at the time MSHA issued its citations – falls within MSHA’s jurisdiction. Both the courts and 

the Commission have interpreted the definition of “mine” broadly. “Mine” is to mean more than 

the ordinary sense of the word. Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589, 591­

34 FMSHRC Page 1726
92 (3d Cir. 1979) (“Although it may seem incongruous to apply the label ‘mine’ to the kind of 

plant operated [here], the statute makes clear that the concept that was to be conveyed by the 

word is much more encompassing than the usual meaning attributed to it”). The goal of the 

Mine Act is to protect miners from the hazards of working to produce mine products and “the 

hazards to which miners are exposed are not limited to the hazards of underground mines, but 

include improperly maintained equipment and supplies that are used in mining.” Jim Walters 

Res., Inc., 22 FMSHRC 21, 29 (Jan. 2000).5 Congress leaves no doubt that the intent of the Act 

is to establish a “single mine safety and health law, applicable to all mining activity.” S. Rep. 

No. 461, 95th Cong., 1st Sess. 37 (1977) (emphasis added). Hence, the definition not only 

includes the area of land from which minerals are extracted, but also encompasses structures, 

facilities, equipment, machines, tools, or other pieces of property that are used in extraction or 

milling of minerals. Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 688 (Apr. 1994). 

Moreover, the Secretary, in interpreting the limits of her jurisdiction under the Mine Act 

and the OSH Act, promulgated the Interagency Agreement to help remove any confusion as to 

the respective authority of those agencies. In the Interagency Agreement, the Secretary 

determined that cement plants are covered by the Mine Act rather than the OSH Act. In section 

B.6.a. of that agreement, the Secretary specifically provided that MSHA has jurisdiction over 

“alumina and cement plants.” 44 Fed. Reg. at 22,827 (April 17, 1979). Appendix A of the 

Interagency Agreement also lists cement under the “Subgroups of Nonmetals” over which 

MSHA has sole jurisdiction. Id. at 22,829. See also Donovan v. Carolina Stalite Co., 734 F.2d 

1547, 1552 (D.C. Cir. 1984) (finding Mine Act jurisdiction to include any “ ‘structures’ and 

“facilities’ used in ‘milling’ or ‘the work of preparing . . . minerals.’ ”); Magma Copper Co. v. 

Sec’y of Labor, 645 F.2d 694 (9th Cir. 1981) (holding that a milling facility itself is a “mine” 

under the Mine Act); Watkins Eng’rs & Constructors, 24 FMSHRC 669 (July 2002) (holding 

that cement plants are “milling” operations and fall within the Mine Act’s definition of “mine”). 

In fact, RECON concedes Mine Act jurisdiction over the Drake Quarry site, including its cement 

preparation plant, at the very least once it became operational. (Answer at ¶ 2; Respondent’s 

Response to Secretary of Labor’s Interrogatories, Set Number One, interrogatory No. 5, dated 

November 15, 2011.) 

RECON makes two temporal arguments to counter the claims of Mine Act jurisdiction. 

First, RECON focuses on the fact that the Drake Quarry cement processing facility was not yet 

operational when RECON performed construction work at the Drake Quarry site, pointing to the 

lack of miner hours reported on quarterly reports. (Resp’t Opp’n at 4, 5.) Second, RECON 

argues that MSHA jurisdiction must be predicated on a quarry (id. at 5) but that the site for the 

quarry to be built had not yet been constructed (id. at 2). RECON would thus have me limit 

MSHA’s jurisdiction until a point in time when the cement facility’s production begins and the 

5

 Inspector Nelson investigated an accident at the Drake Quarry on September 22, 2009 

(Decl. of Lawrence R. Nelson at ¶ 6), which argues in favor of the broad interpretation of “mine” 

espoused by Congress and the courts in view of the remedial nature of the Act. 

34 FMSHRC Page 1727
adjacent quarry is active. Unable to cite case law to support its position, RECON first attempts 

to distinguish the cases cited by the Secretary on their facts, noting they involve mines already in 

existence. (Id. at 4, 5.) RECON attempts to distinguish between repairs and expansions, and 

new construction. (Id.) RECON then plays the “Doubting Thomas” because no case cited by 

the Secretary conforms to the exact facts of this case, i.e., a mine being newly constructed that 

has never before produced or logged mining hours. (Id.) However, I determine that the facts of 

those cases cited by the Secretary, while different, do not make the cases distinguishable in 

principle, and the reasoning behind those cases support the result I reach here. 

The Mine Act’s language that any “workings, structures, facilities, equipment, machines, 

tools, or other property . . . used in, or to be used in, the milling of such minerals” indicates that 

a “mine” includes not just facilities presently being used to mill minerals, but also facilities 

where mineral milling will be taking place in the future. 30 U.S.C. § 802(h)(1). Considering 

Congress’s intent that the Act be interpreted broadly in favor of MSHA jurisdiction, courts have 

held that the “used in, or to be used in” language in the Act would include facilities that are not 

yet producing mine products but are preparing to begin production. Thus, in Cyprus Indus. 

Minerals Co. v. FMSHRC, the Ninth Circuit, in which this case arises, held that activities 

conducted at a site in preparation for future mining may bring the site within the Mine Act’s 

definition of “mine” because the company was engaging in these activities in contemplation of 

mining, even though the activities did not occur on a producing mine site. 664 F.2d 1116, 1117­

18 (9th Cir. 1981). Similarly, the Third Circuit in Lancashire Coal Co. v. Secretary of Labor, 

recognized that the Act refers to three time frames in section 3(h)(1): “(1) the term ‘used in’ 

meaning current use, i.e. ‘being used in’; (2) the term ‘to be used in’ meaning contemplated use; 

and (3) the term ‘resulting from’ meaning former use.” 968 F.2d 388, 390 (3d Cir. 1992). 

Consequently, facilities falling under MSHA jurisdiction would include those that a company 

contemplates using for mining activities. 

The Commission’s ALJs have relied on this “contemplated mining activity” articulated in 

the Mine Act and noted by the courts. As ALJ Amchan commented, “it logically follows from 

the general scheme of Federal regulation of occupational safety and health, that the installation 

and adjustment of equipment at a mine site is subject to the Act prior to the commencement of 

production.” The Pit, 16 FMSHRC 2008, 2010 (Sept. 1994) (ALJ). Likewise, ALJ Moran stated 

“it is undeniable that the hazards associated with [mining] activities are present whether they 

occur during the mine’s set-up for operations to commence or during the actual process of 

mineral removal for its sale.” Khani Co., Inc., 32 FMSHRC 1339, 1342 (Sept. 2010) (ALJ). 

Therefore, so long as the activities are in preparation of future mining activities, those activities 

fall within MSHA jurisdiction. See, e.g., Khani Co., 32 FMSHRC at 1342-43 (ALJ) (holding 

that because the mine was in the process of making repairs to resume production, even though 

the facility was not producing at the time of the inspection, the MSHA inspector had jurisdiction 

over the mine site); Royal Cement, 31 FMSHRC at 1462 (ALJ) (holding that although the plant 

at which the miners were making repairs had been closed for three years, because the miners 

were making repairs on it in preparation for it to begin production again, the plant fell under 

MSHA jurisdiction); The Pit, 16 FMSHRC at 2009-10 (ALJ) (holding that “equipment that is 

located at a site where mining will take place, and will be used in the extraction of minerals, or 

34 FMSHRC Page 1728
 

the milling of minerals, is subject to MSHA jurisdiction – even if mining has not commenced.”). 

At the Drake Quarry site, Drake Cement Company had hired a number of construction 

companies to build the structures and facilities necessary for its new cement processing 

operation. Cement processing is a mining activity as defined by the Mine Act, and thus any 

facility that is used or will be used for cement processing is subject to MSHA jurisdiction. That 

the Drake Quarry site had never before been in operation or that the actual construction of the 

quarry had not occurred is inapposite.6 See Donovan v. Carolina Stalite Co., 734 F.2d at 1552 

(holding section 3(h) “does not require that those structures or facilities be owned by a firm that 

also engages in the extraction of minerals from the ground or that they be located on property 

where such extraction occurs.”) What is important is that Drake Cement Company intended the 

Drake Quarry site to be used in mining activities and that the construction of the facilities was 

being done in contemplation of those mining activities. Because RECON was hired by CCC 

Group as a subcontractor to build a facility on the Drake Quarry site (Sec’y Statement of 

Material Facts at ¶ 6; Resp’t Opp’n at 2; Resp’t Resp. at 2), RECON was using “equipment” and 

“tools” to construct a “facility” being constructed in contemplation of “milling” at the Drake 

Cement Company operation at Drake Quarry, placing it within the Mine Act’s definition of a 

“mine.” 30 U.S.C. § 802(h)(1).7 

2.	 Jurisdictional doubts should be resolved in favor of Mine Act 

coverage. 

When resolving jurisdictional questions, the benefit of the doubt goes to the Secretary. 

As the Commission stated in Watkins Engineers & Constructors, “Congress clearly intended that 

6

 Respondent argues that focusing on how close the cement facility was to completion is 

irrelevant when considering MSHA’s jurisdiction over the site. (Resp’t Opp’n at 6.) Rather, 

Respondent posits that MSHA’s jurisdiction turns on the extent to which the quarry was under 

construction, completed, and prepared for production at the time of the citation. (Id.) I agree 

with Respondent that the state of completion of the construction at the cement facility is 

irrelevant in determining whether MSHA had jurisdiction over the site. Moreover, Respondent’s 

attempts to distinguish between work on the quarry and work on the cement facility are empty 

distinctions, because a cement processing facility need not be in any way connected to a mineral 

extraction site (quarry) and could, due to its own characteristics, be a mine site itself under the 

Act. See Donovan v. Carolina Stalite Co., 734 F.2d at 1552. 

7

 The Act specifies that an “operator” includes “any independent contractor performing 

services or construction at such mine.” 30 U.S.C. § 802(d). An “independent contractor” under 

the Mine Act is “a party . . . [that] performs significant services, under contract or otherwise, on 

mine property.” Joy Technologies, Inc.–Coal Field Operator v. Sec’y of Labor, 99 F.3d 991 

(10th Cir. 1996). RECON was a contractor that was part of the Drake Quarry construction 

project. Because I have determined that Drake Quarry was a mine, RECON was a contractor at a 

mine subject to Mine Act jurisdiction and is an operator so long as it operated at Drake Quarry. 

34 FMSHRC Page 1729
jurisdictional doubts be resolved in favor of coverage by the Mine Act.” Watkins Eng’rs, 24 

FMSHRC at 675–676 (citing S. Rep. No. 95-181, 95th Cong., 1st Sess., at 14 (1977), reprinted 

in 1977 U.S.C.C.A.N. 3401, 3414, and in Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 602 (1978)). Indeed, MSHA issued the Drake Quarry a mine identification 

number in April 2009, six months before the citations in this case were issued during October 

2009.8

 As ALJ Miller stated, the Secretary “is the one whose duty it is to administer the [Act], 

and when, in the course of her administration, she makes informed and reasoned jurisdictional 

determinations, judicial decision makers have been wary of overruling her.” Beylund Constr., 31 

FMSHRC 1410, 1415 (Nov. 2010) (ALJ) (citing Watkins Eng’rs, 24 FMSHRC at 672–673, 

676). Based on the case law discussed above and the Secretary’s issuance of a mine 

identification number to Drake Quarry six months prior to issuing the citations in this case, I 

determine that the Secretary made a reasoned jurisdictional determination that supports Mine Act 

coverage of the Drake Quarry. 

3.	 Respondent’s arguments regarding the MSHA/OSHA Interagency 

Agreement are immaterial. 

Finally, Respondent contends that because Arizona is a State Plan state under the OSH 

Act’s enforcement scheme, Arizona retains jurisdiction over the cement manufacturing facility at 

Drake Quarry that was the venue of the citations being contested. (Resp’t Opp’n at 7.) 

Respondent believes this is relevant given the weight the courts have put on the MSHA/OSHA 

Interagency Agreement and its designation of cement facilities as falling under MSHA’s 

jurisdiction. Respondent argues that the MSHA/OSHA Interagency Agreement is not applicable 

in Arizona because Federal OSHA does not have the authority to make agreements that will 

control Arizona’s State OSHA. 

Respondent’s argument that the MSHA/OSHA Interagency Agreement is not binding in 

Arizona, and therefore Arizona retains jurisdiction over cement facilities, is flawed. Under the 

State Plan program, Federal OSHA transfers jurisdiction to State OSHA once State OSHA 

receives final approval under section 18(e) of the OSH Act. 29 C.F.R. § 1952.355. However, 

MSHA jurisdiction over a mine will preempt the coverage of an OSHA-approved state plan. 

Troy Gold Indus., Ltd. v. Occupational Safety & Health Appeals Bd., 187 Cal. App. 3d 379, 231 

8

 Respondent complains that MSHA only issued Drake Quarry a mine identification 

number partway through the construction project, and therefore none of the contractors or 

subcontractors were aware that they might be operating under MSHA’s jurisdiction. (Resp’t 

Opp’n at 2.) However, a six month gap existed between April 6, 2009, when MSHA issued the 

mine identification number to Drake Quarry and when MSHA inspectors inspected the site on 

October 6 and 7, 2009. (Sec’y Statement of Material Facts at ¶¶ 1, 3; Resp’t Opp’n at 1, 2; 

Resp’t Resp. at 1.) RECON had sufficient time to learn that it was operating on a mine site and 

that its activities were subject to MSHA jurisdiction. Respondent did not raise this issue directly 

in its Opposition or Response. I see no issue of notice here and it is of no import to the question 

of Mine Act jurisdiction. 

34 FMSHRC Page 1730
Cal Rpt. 861 (1986). Likewise, where overlapping jurisdiction exists, MSHA’s ceding authority 

over a mine facility to OSHA (and thereby to state plan enforcement) has been held to be a 

lawful discretionary function. United States v. Agronics, Inc., 164 F.3d 1343 (10th Cir. 1999). 

Given that the MSHA/OSHA Interagency Agreement recognizes that MSHA has sole 

jurisdiction over cement facilities, it follows that the Interagency Agreement controls in 

jurisdictional questions between Arizona’s State OSHA and MSHA. Accordingly, Arizona’s 

State OSHA must cede jurisdiction to MSHA under the Interagency Agreement whenever 

MSHA asserts jurisdiction over cement facilities as it has in this case. 

V. CONCLUSIONS OF LAW 

Because I find that there is no genuine issue of material fact, I have examined the 

applicable law and conclude that the Drake Quarry site was a “mine” under the Mine Act and 

subject to MSHA jurisdiction, and thus the MSHA inspectors had the authority to issue RECON 

the citations at issue in this case. AccordinglyI conclude the Secretary is entitled to summary 

decision on the issue of jurisdiction as a matter of law. 

VI. ORDER 

In light of the foregoing, IT IS ORDERED that the Secretary’s motion for partial 

summary decision on the issue of jurisdiction is GRANTED. This case is still scheduled on 

July 17–18, 2012, for a hearing on the merits of the citations issued. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Mail) 

Douglas L. Sanders, Esq., Office of the Solicitor, U.S. Department of Labor, MSHA, 1999 

Broadway, Suite 800, Denver, CO 80202-5708 (sanders.douglas.l@dol.gov) 

Gene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 12800 Center Court Dr., 

Suite 300, Cerritos, CA 90703-9364 (EMcMenamin@aalrr.com) 

/ces 

34 FMSHRC Page 1731