July 2011
 

TABLE OF CONTENTS
 

COMMISSION DECISIONS AND ORDERS
 

07-11-2011 OMYA CALIFORNIA WEST2011-604-M Page 1563
	

MATHY CONSTRUCTION COMPANY
	

PETER DUNNE vs. VULCAN
	

CONSTRUCTION
	

07-12-2011 LAFARGE NORTH AMERICA, INC. LAKE2010-481-M Page 1567
	

07-13-2011 CAM MINING, LLC KENT2010-1630 Page 1571
	

07-13-2011 MILESTONE MATERIALS DIVISION/ LAKE2010-844-M Page 1574
	

07-13-2011 ASARCO LLC WEST2010-1619-M Page 1577
	

07-13-2011 CEMEX CALIFORNIA CEMENT, LLC WEST2010-1782-M Page 1580
	

07-13-2011 INR-WV OPERATING, LLC WEVA2010-788 Page 1583
	

07-14-2011 SECRETARY OF LABOR o/b/o LAKE2011-327-DM Page 1587
	

07-21-2011 BARRETT PAVING MATERIALS, INC. LAKE2010-1037-M Page 1592
	

07-21-2011 EXCALIBAR MINERALS, LLC SE2010-957-M Page 1595
	

07-25-2011 GRAND EAGLE MINING, INC. KENT2009-1116 Page 1598
	

07-25-2011 M3 ENERGY MINING COMPANY KENT2010-33 Page 1604
	

07-25-2011 AMES CONSTRUCTION, INC. WEST2009-693-M Page 1607
	

07-27-2011 SPRING CREEK MATERIALS, INC. CENT2010-317-M Page 1618
	

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-07-2011		 LAFARGE NORTH AMERICA CENT2010-4-M Page 1621
	

07-12-2011		 BLACK BEAUTY COAL COMPANY LAKE 2009-483 Page 1625
	

07-13-2011		 SECRETARY OF LABOR o/b/o KENT2011-1152-D Page 1638
	

THURMAN WAYNE PRUITT vs.
	

GRAND EAGLE MINING
	

i
	
07-21-2011 CARMEUSE LIME & STONE SE 2010-566 Page 1654 

07-27-2011 SECRETARY OF LABOR o/b/o 

KENNETH WILDER vs. PRIVATE 

INVESTMENTS 

KENT 2011-1224-D Page 1667 

07-27-2011 MACH MINING, LLC LAKE2009-716-R Page 1674 

07-27-2011 BOWIE RESOURCES LLC WEST2008-814 Page 1685 

07-28-2011 LIGGETT MINING, LLC KENT 2008-1533 Page 1702 

07-28-2011 AMERICAN COAL COMPANY LAKE 2008-172-R Page 1724

 ADMINISTRATIVE LAW JUDGE ORDERS 

07-08-2011 SECRETARY OF LABOR o/b/o 

THURMAN WAYNE PRUITT vs. 

GRAND EAGLE MINING 

KENT2008-562 Page 1726 

07-18-2011 ROAD FORK DEVELOPMENT 

COMPANY, INC. 

KENT2010-577 Page 1732 

07-28-2011 SECRETARY OF LABOR o/b/o 

THURMAN WAYNE PRUITT vs. 

GRAND EAGLE MINING 

KENT2011-1152-D Page 1738 

ii
	
Review was granted in the following cases during the month of July 2011: 

Secretary of Labor, MSHA on behalf of Peter L. Dunne v. Vulcan Construction Materials, Docket 

No. LAKE 2011-327-DM. (Judge Harner, unpublished order Denying Motion to dissolve Order 

of Temporary Economic Reinstatement) 

Secretary of Labor, MSHA v. Black Beauty Coal Company, Docket No. LAKE 2009-570. (Judge 

Miller, June 21, 2011) 

Lakeview Rock Products, Inc. v. Secretary of Labor, MSHA, Docket No. WEST 2010-1856-RM. 

(Judge Andrews, June 22, 2011) 

Review was denied in the following case during the month of July 2011: 

Secretary of Labor, MSHA v. Spring Creek Materials, Inc., Docket Nos. CENT 2010-317-M, et 

al., (Interlocutory Review of June 24, 2011 order by Chief Judge Lesnick) 

Secretary of Labor, MSHA v. Black Beauty Coal Company, Docket No. LAKE 2009-470. (Judge 

Miller, June 21, 2011) 

iii
	

COMMISSION DECISIONS AND ORDERS
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 11, 2011 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

 : 

: 

:

 : 

: 

Docket No. WEST 2011-604-M

A.C. No. 04-00167-239737

Docket No. WEST 2010-1360-RM 

Citation No. 8560265

OMYA CALIFORNIA

 : 

: 

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

DIRECTION FOR REVIEW AND 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”).1 On February 3, 2011, the Commission received a motion by 

counsel for Omya California (“Omya”) in Docket No. WEST 2011-604-M requesting to reopen a 

penalty assessment pertaining to Citation No. 8560265 that had become a final order of the 

Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On February 18, 

2011, the Commission received a response from the Secretary of Labor stating that she does not 

oppose the request to reopen the assessment. While the motion was pending, Chief 

Administrative Law Judge Robert J. Lesnick dismissed Omya’s contest proceeding pertaining to 

Citation No. 8560265 (Docket No. WEST 2010-1360-RM) on the basis that the penalty 

assessment was never contested. On June 20, 2011, the Commission received a motion to 

rescind dismissal arguing that the proceeding had been erroneously dismissed due to clerical 

error. 

We treat Omya’s motion to rescind dismissal as a petition for discretionary review and 

grant it. We conclude that, because Omya was in the process of contesting the penalty 

assessment, the dismissal was premature. Accordingly, the contest proceeding in Docket No. 

WEST 2010-1360 is hereby reinstated. 

1

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

consolidate docket numbers WEST 2010-1360-RM and WEST 2011-604-M, both captioned 

Omya California and both involving similar issues. 29 C.F.R. § 2700.12. 

33 FMSHRC Page 1563
With respect to Docket No. WEST 2011-604-M, 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). 

33 FMSHRC Page 1564
Having reviewed the facts and circumstances of this case, the operator’s requests, and the 

Secretary’s response, we hereby reopen the penalty proceeding contained in Docket No. WEST 

2011-604-M 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. In addition, we vacate the 

order of dismissal issued in Docket No. WEST 2010-1360-RM. 

_/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 

33 FMSHRC Page 1565
 

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 

Keith E. Bell, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

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 

33 FMSHRC Page 1566
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 12, 2011 

LAFARGE NORTH AMERICA, INC. :

 : 

v. : Docket No. LAKE 2010-481-M

 : Docket No. LAKE 2010-22-RM

 : Docket No. LAKE 2010-23-RM 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA) : 

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

DIRECTION FOR REVIEW AND 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”).1 On June 21, 2011, the Commission received a motion by 

counsel for LaFarge North America, Inc., (“LaFarge”) in Docket Nos. LAKE 2010-22-RM and 

LAKE 2010-23-RM requesting that those contest proceedings be reopened “due to mistake and 

clerical error.” On June 3, 2011, Chief Judge Lesnick had dismissed the operator’s section 

105(d) contests of Citation No. 6403907 and Order No. 6403908, which had been docketed as 

Nos. LAKE 2010-22-RM and LAKE 2010-23-RM, respectively. These contest cases had 

previously been stayed pending the assessment of the proposed penalties. The contest 

proceedings were dismissed because the Judge believed that the operator had failed to file an 

answer in the civil penalty proceeding involving the same citation and order and was therefore in 

default. That civil penalty proceeding had been docketed as No. LAKE 2010-481-M. 

We treat LaFarge’s motion to rescind dismissal of the contest proceedings (Nos. LAKE 

2010-22-RM and LAKE 2010-23-RM) as a petition for discretionary review and grant it. We 

conclude that, because LaFarge had filed an answer in the civil penalty proceeding (No. LAKE 

2010-481-M), the contest proceedings should not have been dismissed. We also construe the 

motion as a request to reopen the civil penalty proceeding. 

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

Docket Nos. LAKE 2010-481-M, LAKE 2010-22-RM, and LAKE 2010-23-RM, all captioned 

LaFarge North America, Inc., and involving similar issues. 29 C.F.R. § 2700.12. 

33 FMSHRC Page 1567
 

On March 16, 2011, Chief Judge Lesnick had issued an Order to Show Cause and Default 

Order in the civil penalty proceeding. The order stated that a timely answer to the Secretary’s 

petition for civil penalty had not been received by the Commission. Accordingly, LaFarge was 

ordered to file an answer within 30 days. Under the terms of the order, a failure to file an answer 

would automatically place the case in default on the 31st day. 

Subsequently, the file in No. LAKE 2010-481-M did not indicate that an answer from 

LaFarge in response to the show cause order was ever received. As a result, the civil penalty 

proceeding was automatically placed in default status and the proposed penalties for the citation 

and order became final orders of the Commission. 

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”); Jim Walter Res., 

Inc., 15 FMSHRC 782, 787 (May 1993). We have also observed that default is a harsh remedy 

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

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

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

In its motion to rescind dismissal received on June 21, 2011, LaFarge contends that the 

judge’s dismissal of the contest proceedings was in error, because it had timely filed an answer 

in No. LAKE 2010-481-M with the Commission within 30 days of receipt of the petition for 

assessment of civil penalty. LaFarge attached a copy of the answer and a signed certificate of 

service dated March 29, 2010. We accept the representation of counsel for LaFarge that the 

answer was sent. 

33 FMSHRC Page 1568
Having reviewed the facts and circumstances of these cases, we hereby reopen the civil 

penalty and contest proceedings and remand them to the Chief Administrative Law Judge for 

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

Part 2700. We also vacate the June 3, 2011, order dismissing the contest proceedings. 

_/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 

33 FMSHRC Page 1569
 

 

 

 

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 

Keith E. Bell, Esq.. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Ann M. Noble, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway, Suite 800

 Denver, CO 80202 

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 

33 FMSHRC Page 1570
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 13, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. KENT 2010-1630 

v. : A.C. No. 15-18911-222233

 : 

CAM MINING, 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 September 22, 2010, the Commission received from 

CAM Mining, LLC, a motion requesting that the Commission reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). On October 22, 2010, the Commission received a response from the Secretary 

of Labor stating that she does not oppose the request to reopen the assessment. 

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). 

33 FMSHRC Page 1571
 

Having reviewed the facts and circumstances of this case, the operator’s request, and the 

Secretary’s response, 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 

33 FMSHRC Page 1572
 

Distribution: 

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East 

P.O. Box 273 

Charleston, WV 25321 

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 

33 FMSHRC Page 1573
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 13, 2011 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 :

 :

 ADMINISTRATION (MSHA) :

 : Docket No. LAKE 2010-844-M 

v. : A.C. No. 47-03213-206165

 : 

MILESTONE MATERIALS DIVISION/

 MATHY CONSTRUCTION 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 July 16, 2010, the Commission received from 

Milestone Materials Division/Mathy Construction Company a motion by its counsel to reopen a 

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

of the Mine Act, 30 U.S.C. § 815(a). On July 29, 2010, the Commission received a response 

from the Secretary of Labor stating that she does not oppose the request to reopen the 

assessment. 

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 

Ex. 5 Deliberative

33 FMSHRC Page 1574
 

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

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

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the 

Secretary’s response, 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 

Ex. 5 Deliberative

33 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 

Ex. 5 Deliberative Ex

. 5 

De

lib

er

ati

ve

33 FMSHRC Page 1576
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 13, 2011 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

 : 

: 

:

 : 

: 

Docket No. WEST 2010-1619-M

A.C. No. 02-00135-216202-01

Docket No. WEST 2010-1620-M 

A.C. No. 02-00135-216202-02

ASARCO 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 August 2, 2010, the Commission received motions by 

counsel from ASARCO LLC requesting to reopen penalty assessments that had become final 

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

August 12, 2010, the Commission received a response from the Secretary of Labor stating that 

she does not oppose the requests to reopen the assessments. 

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 

1

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

consolidate docket numbers WEST 2010-1619-M and WEST 2010-1620-M, both captioned 

ASARCO LLC and both involving similar procedural issues. 29 C.F.R. § 2700.12. 

33 FMSHRC Page 1577
 

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

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

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

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

Having reviewed the facts and circumstances of this case, the operator’s requests, and the 

Secretary’s response, 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 

33 FMSHRC Page 1578
 

 

Distribution: 

Marci M. Fulton, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

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 

33 FMSHRC Page 1579
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 13, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. WEST 2010-1782-M 

v. : A.C. No. 04-05701-225178

 : 

CEMEX CALIFORNIA CEMENT, 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 September 7, 2010, the Commission received from 

Cemex California Cement, LLC, a motion requesting that the Commission reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). On September 27, 2010, the Commission received a response 

from the Secretary of Labor stating that she does not oppose the request to reopen the 

assessment. 

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). 

33 FMSHRC Page 1580
 

Having reviewed the facts and circumstances of this case, the operator’s request, and the 

Secretary’s response, 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 

33 FMSHRC Page 1581
 

 

Distribution: 

Denise E. Giraudo, Esq. 

Ogletree, Deakins, Nash

 Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

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 

33 FMSHRC Page 1582
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001

 July 13, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. WEVA 2010-788

 ADMINISTRATION (MSHA) : A.C. No. 46-09217-204747

 : 

v. : Docket No. WEVA 2010-810

 : A.C. No. 46-09280-204750 

INR-WV OPERATING, LLC : 

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”).1

 On March 23 and 26, 2010, the Commission received 

motions by INR-WV Operating, LLC (“INR-WV”) seeking to reopen two penalty assessments 

that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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 

1

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

consolidate docket numbers WEVA 2010-788 and WEVA 2010-810, both captioned INR-WV 

Operating, LLC, and involving the same procedural issues. 29 C.F.R. § 2700.12. 

33 FMSHRC Page 1583
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On December 2, 2009, the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) issued Proposed Assessment Nos. 000204747 and 000204750 to 

INR-WV. The operator states that it failed to timely contest the proposed assessments due to a 

mistake by its accounting department. INR-WV contends that it followed normal procedures for 

processing the assessment forms in that the safety director received and reviewed the assessment 

forms, determined which penalties to contest and which to pay, and forwarded the forms to the 

accounts manager to prepare check requests and forward the requests and assessment forms to 

the accounting department for payment and processing. The operator contends that the failure 

occurred when the accounting department prepared the checks for payment, but did not submit 

the forms to MSHA’s Arlington office or return them to the safety director so that he could 

submit them. The operator also states that it timely contested one of the underlying citations, 

pending in Docket No. WEVA 2010-260-R, which is the subject of the proposed assessment it 

seeks to reopen in Docket No. WEVA 2010-788. The operator filed its requests to reopen less 

than a month after receiving MSHA’s delinquency notices in both cases. 

On April 6, 2010, the Commission received responses from the Secretary of Labor stating 

that she does not oppose the requests to reopen the assessments. She confirms that the operator 

timely submitted payment for the uncontested portions of both proposed assessments. 

33 FMSHRC Page 1584
 

Having reviewed the facts and circumstances of these cases, the operator’s requests, and 

the Secretary’s responses, we hereby reopen these matters and remand them to the Chief 

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

Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the 

Secretary shall file petitions for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

_/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 

33 FMSHRC Page 1585
 

Distribution: 

Matthew H. Nelson, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

Robert H. Beatty, Jr., Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

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 

33 FMSHRC Page 1586
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500
	

WASHINGTON, DC 20001
	

July 14, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), :

 on behalf of PETER L. DUNNE :

 : 

v. : Docket No. LAKE 2011-327-DM

 : 

VULCAN CONSTRUCTION :

 MATERIALS, LP : 

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

DECISION 

BY: Jordan, Chairman, and Nakamura, Commissioner 

This temporary reinstatement proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). Pursuant to 

section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), and a settlement agreement among the 

parties, Administrative Law Judge Janet Harner ordered miner Peter L. Dunne temporarily 

reinstated, on an economic basis, at Vulcan Construction Materials, LP (“Vulcan Materials”) 

after he had been discharged by the operator. Unpublished Order, dated Jan. 28, 2011 (ALJ). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”), by letter dated 

February 15, 2011, notified Dunne that it had concluded he had not been discriminated against. 

Consistent with the instructions included in MSHA’s letter, on March 16, 2011, Dunne filed his 

own discrimination complaint pursuant to section 105(c)(3), 30 U.S.C. § 815(c)(3). It is 

presently pending before Commission Administrative Law Judge L. Zane Gill in Dunne v. 

Vulcan Construction Materials, LP, Docket No. LAKE 2011-457-DM. 

On April 28, 2011, Vulcan Materials moved in Docket No. LAKE 2011-457-DM to 

dissolve the order of temporary reinstatement. The Secretary of Labor filed a response in 

opposition, and on June 7, 2011, Judge Gill issued an order denying the motion to dissolve. On 

July 7, 2011, Vulcan Materials filed a Petition for Discretionary Review, which the Commission 

has granted. 

33 FMSHRC Page 1587
Consistent with our opinion in Secretary of Labor on behalf of Gray v. North Fork Coal 

Corp., 33 FMSHRC 27, 33-44 (Jan. 2011), we affirm the judge’s order denying Vulcan 

Materials’ motion to dissolve the temporary reinstatement order. 

_/s/ Mary Lu Jordan___________________ 

Mary Lu Jordan, Chairman 

_/s/ Patrick K. Nakamura_______________ 

Patrick K. Nakamura, Commissioner 

33 FMSHRC Page 1588
Commissioner Cohen, concurring: 

Consistent with my opinion in Secretary of Labor on behalf of Gray v. North Fork Coal 

Corp., 33 FMSHRC 27, 45-52 (Jan. 2011), I agree that the judge’s order denying the motion to 

dissolve the temporary reinstatement order should be affirmed. 

_/s/ Robert F. Cohen Jr.________________ 

Robert F. Cohen, Jr., Commissioner 

33 FMSHRC Page 1589
Commissioners Duffy and Young, dissenting: 

Consistent with our opinion in Secretary of Labor on behalf of Gray v. North Fork Coal 

Corp., 33 FMSHRC 27, 53-58 (Jan. 2011), we disagree that the judge’s order denying the 

motion to dissolve the temporary reinstatement order should be affirmed, and instead would 

reverse the judge’s order denying the motion and dissolve the temporary reinstatement order. 

_/s/ Michael F. Duffy__________________ 

Michael F. Duffy, Commissioner 

_/s/ Michael G. Young_________________ 

Michael G. Young, Commissioner 

33 FMSHRC Page 1590
 

Distribution 

Ruben R. Chapa, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

230 S. Dearborn St., 8th Floor 

Chicago, IL 60604 

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 

William K. Doran, Esq.
	

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

2400 N Street, N.W., 5th Floor
	

Washington, DC 20037
	

Peter L. Dunne
	

6691 Church Street
	

Hanover Park, IL 60133
	

Chad Murphy
	

Business Representative
	

Local 150 Operating Engineers
	

2000 Bolton Blvd.
	

Barlett, IL 60103
	

Administrative Law Judge Janet Harner
	

Federal Mine Safety & Health Review Commission
	

Office of Administrative Law Judges
	

7 Parkway Center
	

875 Greentree Road, Suite 290
	

Pittsburgh, PA 15220
	

33 FMSHRC Page 1591
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 21, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : 

v. : Docket No. LAKE 2010-1037-M

 : A.C. No. 33-00115-219165 

BARRETT PAVING MATERIALS, 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 September 27, 2010, the Commission received from 

Barrett Paving Materials, Inc. (“Barrett”) a letter seeking to reopen a penalty assessment that had 

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

§ 815(a). On October 27, 2010, the Commission received a response from the Secretary of 

Labor stating that she does not oppose the request to reopen the assessment. 

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). 

Ex. 5 Deliberative

33 FMSHRC Page 1592
 

Having reviewed the facts and circumstances of this case, the operator’s request, and the 

Secretary’s response, 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 

Ex. 5 Deliberative

33 FMSHRC Page 1593
 

Distribution: 

Missy Herrmann 

Human Resources Coordinator 

Barrett Paving Materials, Inc. 

2589 Needmore Rd. 

Dayton, OH 45414 

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 

Ex. 5 Deliberative

33 FMSHRC Page 1594
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 21, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. SE 2010-957-M 

v. : A.C. No. 40-03183-216330

 : 

EXCALIBAR MINERALS, 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 July 19, 2010, the Commission received from 

Excalibar Minerals, LLC a motion by counsel to reopen a penalty assessment that had become a 

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

On August 3, 2010, the Commission received a response from the Secretary of Labor stating that 

she does not oppose the request to reopen the assessment. 

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). 

33 FMSHRC Page 1595
 

Having reviewed the facts and circumstances of this case, the operator’s request, and the 

Secretary’s response, 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 

33 FMSHRC Page 1596
 

Distribution: 

Henry Chajet, Esq. 

Patton Boggs, LLP 

2550 M Street NW 

Washington, DC 20037-1350 

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 

33 FMSHRC Page 1597
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 25, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. KENT 2009-1116 

v. : A.C. No. 15-16231-145671-02

 : 

GRAND EAGLE MINING, INC. : 

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

ORDER 

BY: Duffy, Young, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) (“Mine Act”). On June 4, 2009, the Commission received from Grand 

Eagle Mining, Inc. (Grand Eagle”) a motion by counsel to reopen part of 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. Id. 

However, we have held that in appropriate circumstances, we possess jurisdiction to 

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

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

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

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

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

See 29 C.F.R. § 2700.1(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). 

33 FMSHRC Page 1598
 

Grand Eagle states that, in completing the contest form for Assessment No. 000145671 to 

contest five of the proposed penalties, it inadvertently indicated that it was contesting the penalty 

proposed for Citation No. 6695856, when it instead meant to contest the penalty proposed for 

Citation No. 6695859. The contest form was timely submitted to the Secretary. The Secretary 

states that she does not oppose the reopening of the proposed penalty assessment.1 

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

justice, we hereby reopen this matter,2 and remand it to Administrative Law Judge Jacqueline 

Bulluck for further proceedings pursuant to the Mine Act and the Commission’s Procedural 

Rules, 29 C.F.R. Part 2700.3 

1 Though the Secretary did not identify a final order date in her response with respect to 

the uncontested penalties in the assessment, we note that it is likely that Grand Eagle’s motion 

here was filed more than a year after its receipt of the assessment. Thus, there may be an issue 

as to whether the motion is time barred under Rule 60. See Fed. R. Civ. Pro. 60(c)(1). The Mine 

Act does not address the fact that penalties may be proposed via assessments that contain 

multiple proposed penalties, some of which may be contested while others are not. See 30 

U.S.C. § 815(a). Consequently, in these limited circumstances, where the operator erred by 

contesting a specific penalty different from the one that it intended to contest, we will treat the 

request as akin to a motion to amend a pleading, in this case the contest form. The Secretary’s 

non-opposition to Grand Eagle’s request indicates that she will not be prejudiced by permitting 

the limited amendment sought by the operator. Consequently, we will grant the request. See 

Cyprus Empire Corp., 12 FMSHRC 911, 914-15, 916 (May 1990) (upholding, as consistent with 

the provisions of Rule 15(a) of the Federal Rules of Civil Procedure regarding the amendment of 

pleadings, the judge’s decision to permit the citation and order at issue to be modified shortly 

before the hearing). 

2 Given that all the evidence indicates that the operator met the initial contest deadline, 

we cannot agree with the dissent that Commission case law regarding operators who fail to meet 

contest deadlines is relevant in this instance. In any event, an operator’s realizing a year or so 

later that it made a mistake in completing a contest form is likely explained by the time lag 

between the filing of the contest and the adjudication process. We cannot see what would be 

gained by denying the motion just to have the operator explain that on the record in this case. 

3 Judge Bulluck is currently presiding over related proceedings (Docket No. KENT 2008-

882). 

33 FMSHRC Page 1599
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/ Michael F. Duffy__________________ 

Michael F. Duffy, Commissioner 

_/s/ Michael G. Young_________________ 

Michael G. Young, Commissioner 

_/s/ Patrick K. Nakamura_______________ 

Patrick K. Nakamura, Commissioner 

33 FMSHRC Page 1600
 

Chairman Jordan and Commissioner Cohen, dissenting: 

The Secretary of Labor issued a proposed penalty assessment to Grand Eagle Mining, 

Inc. (“Grand Eagle”) on April 3, 2008. The operator mistakenly checked the wrong box on the 

penalty assessment form and thus contested a penalty different from the one it intended to 

challenge. The penalty it wished to contest became a final order of the Commission pursuant to 

section 105(a) of the Mine Act, 30 U.S.C. § 815(a) (presumably some time in May 2008). 

However, it was not until June 2009 – over a year later – that Grand Eagle filed a motion to 

reopen the final order. 

As the majority states, the Commission evaluates requests to reopen final section 105(a) 

orders by referring to Rule 60(b) of the Federal Rules of Civil Procedure, under which a party 

may be entitled to relief from a final order of the Commission on the basis of mistake, 

inadvertence, or excusable neglect. Slip op. at 1. Although our colleagues acknowledge that, 

pursuant to Rule 60(c)(1), the operator’s motion may be time barred, id. at 2 n.1, they proceed to 

grant relief by invoking Rule 15(a) of the Federal Rules of Civil Procedure and treating the 

operator’s request as a motion to amend a pleading (the contest form). 

In so doing, they have, in effect, rewarded the operator for its lengthy delay in filing its 

request to reopen. In treating this request under the more lenient standards of Rule 15 instead of 

under Rule 60(b), the majority skipped the required inquiry under Rule 60(b)(1) as to whether 

the operator was entitled to relief on the basis of mistake, inadvertence, or excusable neglect. 

Moreover, at this stage in the proceedings, we cannot amend the penalty assessment form by 

substituting one citation (the one Grand Eagle wished to contest) for another (the citation it 

actually contested). This is because the latter citation was settled, presumably with the operator 

receiving the benefit of its mistaken contest.1 If we were truly amending the penalty assessment 

form by substituting one citation for another, the operator would be paying the other penalty in 

full, as though it did not contest it. 

We believe the better course would be to deny this motion without prejudice. The 

operator did not provide any explanation for why it waited a year to request relief. We would 

ask the operator to confirm the date it received the proposed penalty assessment (30 days from 

which would be the date it became a final order of the Commission), and thus such confirmation 

would permit us to calculate whether the motion was filed more than one year later. We would 

also ask it to submit information as to why it waited until June 2009 to seek relief. See Con-Agg 

of Mo, LLC, 33 FMSHRC ____, slip op. at 3 n.2, No. CENT 2011-193-M (June 1, 2011) 

(denying without prejudice the operator’s request to reopen and stating that a renewed request to 

reopen should indicate when the operator first became aware that it had missed the contest 

deadline and whether it acted promptly in filing its motion to reopen). 

1 We would have thought that as Grand Eagle proceeded to settle the case it had not 

intended to contest, it would have been put on notice that it had failed to contest the proper 

citation. 

33 FMSHRC Page 1601
Accordingly, we respectfully dissent.
	

_/s/ Mary Lu Jordan___________________ 

Mary Lu Jordan, Chairman 

_/s/ Robert F. Cohen Jr.________________ 

Robert F. Cohen, Jr., Commissioner 

33 FMSHRC Page 1602
 

 

Distribution: 

Melanie J. Kilpatrick, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

3151 Beaumont Centre Circle, Suite 375 

Lexington, KY 40513 

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 

33 FMSHRC Page 1603
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 25, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. KENT 2010-33 

v. : A.C. No. 15-19180-181571

 : 

M3 ENERGY MINING 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 October 8, 2009, the Commission received from M3 

Energy Company (“M3”) a motion from counsel to reopen a penalty assessment that may have 

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

§ 815(a). 

Under section 105(a) of the Mine Act, an 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. Id. 

Based on the statements set forth in M3’s motion, which the Secretary states that she 

does not oppose, it appears that the proposed assessment at issue was never received by M3. 

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

and M3’s motion to reopen is therefore denied as moot. We hereby remand this matter 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 

33 FMSHRC Page 1604
Secretary shall file a petition for assessment 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 

33 FMSHRC Page 1605
 

Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

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 

33 FMSHRC Page 1606
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001
	

July 25, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. WEST 2009-693-M 

v. :

 : 

AMES CONSTRUCTION, INC. : 

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

DECISION 

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

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”), Judge Margaret Miller upheld a citation 

charging Ames Construction, Inc., (“Ames”) with a violation of 30 C.F.R. § 56.9201. 32 

FMSHRC 347 (Mar. 2010) (ALJ). Section 56.9201 provides that “[e]quipment and supplies 

shall be loaded, transported, and unloaded in a manner which does not create a hazard to persons 

from falling or shifting equipment or supplies.” The Commission granted Ames’s Petition for 

Discretionary Review, which challenges the judge’s determination that Ames violated the safety 

standard in section 56.9201. For the reasons that follow, we affirm the judge’s decision in result. 

I. 

Factual and Procedural Background 

This proceeding concerns the events surrounding a delivery of pipes at the Kennecott 

Tailings Facility near Magna, Utah, and a fatal accident which occurred in connection with the 

delivery. Ames contracted with Kennecott to construct and raise a tailings dam, pipe, and 

roadways at the Kennecott Tailings Facility. 32 FMSHRC at 347 (citing Stip. 4, Tr. 261-262). 

As the construction at the facility progressed, it was necessary to extend a pipeline used to 

transport waste product. Tr. 55-56. Consequently, Ames regularly received deliveries of pipes 

at the property. Approximately 60 to 70 loads of pipe were delivered to the facility during 2008. 

Tr. 226-27. 

33 FMSHRC Page 1607
 

The pipes were manufactured by WL Plastics and purchased by Kennecott. Gov’t Ex. 5 

at 8; Tr. 65. At the WL Plastics factory, pipes were loaded onto the trailer of a delivery truck 

bound for the Tailings Facility. Tr. 65. In this instance, the delivery truck was owned by Bob 

Orton Trucking (“Orton”) and driven by an employee of Orton. 32 FMSHRC at 348. The 

driver, William Kay, was 81 years old and had 55 years of experience as a truck driver. Id., 

Stip. 28. 

On October 29, 2008, Kay arrived at the Tailings Facility with a trailer loaded with nine 

pipes, each of which was about 50 feet in length and 3,000 pounds in weight. Id. (citing 

Tr. 65). After arriving at the facility, Kay stopped at the Ames office. Id. at 349 (citing 

Tr. 151). Ames employees check with each driver to determine if the driver holds a hazard card. 

Tr. 55. On this particular morning, Kay displayed his Kennecott hazard card, which indicated 

that he had received hazard training. 32 FMSHRC at 348 (citing Tr. 88, Gov’t Ex. 11). 

However, the hazard training Kay had received did not involve the unloading of materials from a 

truck. Id. (citing Tr. 104, 118). 

According to the policy at the Tailings Facility, Ames’s employees would escort outside 

drivers while they were on the property. Stip. 9. Greg Davis, a member of the Ames crew, 

retrieved a truck to use while escorting Kay to the pipe unloading area. Tr. 204. While walking 

to the truck, Davis observed the load of pipes and noticed that it lacked chocks, which are 

normally included to prevent rolling. Tr. 204. Additionally, he observed that the dunnage was 

smaller than the four-by-four blocks normally used.1 Tr. 204. 

Davis, along with two additional members of the Ames crew, James Hilton and Juan 

Florez, escorted Kay to the unloading area. 32 FMSHRC at 349 (citing Tr. 151). The Ames 

crew drove the separate truck during the approximately eight-mile long drive. Id. (citing Tr. 

154). Upon reaching the designated unloading area, only Florez exited the Ames truck. Id. 

(citing Tr. 160; Stip. 12, 13). Davis instructed the truck driver, Kay, to “stay right here.” Stip. 

13. Davis and Hilton then left to retrieve a forklift located elsewhere on the facility. Stip. 12. 

Florez remained with Kay, but the two did not speak while they waited at the site. Stip. 14, 16. 

Normally the Orton drivers do not unload the truck on their own, but do participate in the 

unloading process by loosening the straps that secure the load with a long tool that they carry in 

the truck. 32 FMSHRC at 349 (citing Tr. 90). The remainder of the process is performed by the 

contractor who is in charge of the site. Id. 

After the Ames truck left, Florez crossed the road and remained for several minutes 

before returning to the unloading area. 32 FMSHRC at 349. On his return, Florez waited near 

the passenger side of the truck for the crew to arrive with the forklift. Id. During their time 

together at the unloading area, Florez observed Kay near his toolbox. Id. Florez’s attention was 

1

 Dunnage is wood placed down the length of the trailer between each level of pipe, in 

order to maintain the stability of the load. Tr. 16, 129. It creates a separation between the pipes 

so the forklift cover can fit neatly between the pipe sections as they are unloaded, so it does not 

damage the pipe. Tr. 46-47. 

33 FMSHRC Page 1608
 

on the road when he heard a loud crack. Id. The noise came from a pipe which had dislodged 

and rolled off the trailer. Stip. 17. Kay had removed all of the straps from the load without any 

supplemental support. Stip. 17. Kay received fatal crushing injuries from the pipe. Stip. 17. 

At the time of the accident, Davis and Hilton had not yet returned to the unloading area with the 

forklift. Stip. 18. 

At the conclusion of the accident investigation, MSHA issued Citation No. 6328009 to 

Ames for an alleged violation of the safety standard in section 56.9201 and designated the 

violation as “significant and substantial” (“S&S”).2 Ames subsequently contested the citation as 

well as the associated civil penalty, which was proposed to be $13,268. 

On March 23, 2010, the judge issued a decision, after a hearing on the merits, in 

which she concluded that the pipes were not unloaded safely as required by section 56.9201, that 

the violation was “S&S,” and that Ames was strictly liable for the violation.3 32 FMSHRC at 

351-54. She found that the unloading process began when the truck was parked at the unloading 

area and a member of the Ames crew was present for the purpose of unloading. Id. at 351. The 

judge also found that the truck driver was “transporting the pipes for the use of Ames, on 

property that was under the control of Ames.” Id. at 350. The judge found “it [was] Ames’ 

responsibility to unload the pipes.” Id. at 349. Finally, she stated that once the unloading 

process began, “Ames was responsible for doing it correctly.” Id. at 351. In concluding that 

Ames was strictly liable for the violation, the judge erroneously believed that Orton was a 

subcontractor of Ames and relied, in part, on the Commission’s decision in Mingo Logan Coal 

Co., which states that “the Act’s scheme of liability provides that an operator, although faultless 

itself, may be held liable for violative acts of its employees, agents and contractors.” 19 

FMSHRC 246, 249 (Feb. 1997) (quoting Bulk Transp. Serv., Inc., 13 FMSHRC 1354, 1359-1360 

(Sep. 1991)). 

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

which distinguishes as more serious any violation that “could significantly and substantially 

contribute to the cause and effect of a . . . mine safety and health hazard.” 

3 Citation No. 6328010 was issued to Orton for a violation of the same safety standard 

and alleged a violative condition or practice identical to the condition described in Citation 

No. 6328009. A civil penalty of $35,000 was proposed for Citation No. 6328010. Orton and 

MSHA agreed to a reduction in the penalty to $5,000. In the Decision Approving Settlement, 

Judge Miller stated that the settlement terms were based on the respondent’s “financial condition 

and the impact the originally assessed penalty would have had on the operator’s ability to 

continue in business.” Bob Orton Trucking, Docket No. WEST 2009-774, Unpublished Order 

(June 17, 2010). 

33 FMSHRC Page 1609
 

II. 

Disposition

 Ames contends that the judge erred factually in determining that Orton was its 

subcontractor. A. Br. at 9-10. Ames further contends that its employees could not have 

prevented the accident. A. Br. at 11-12, 15. Ames maintains that in the absence of a 

contractual relationship with Orton, it is not liable for the violation of section 56.9201. Instead, 

it asserts that it was a third party “bystander,” and therefore the liability scheme applied by the 

judge was “wholly misplaced.” A. Br. at 13-15. Additionally, Ames disputes that it was in a 

supervisory position at the time the driver began to unstrap the load. A. Br. at 15-16; Reply Br. 

at 8-9. Thus, Ames denies that it engaged in any activity which violated section 56.9201. A. Br. 

at 15-17. Finally, Ames contends that the Secretary, in urging Ames’s liability for the acts of an 

unrelated third party, is “unjustifiably expanding the potential for liability to an unconscionable 

extent.” A. Br. at 17-19; Reply Br. at 3-8. 

The Secretary concedes that the judge’s finding that Orton was a subcontractor of Ames 

is not supported by the record. S. Br. at 8. However, the Secretary asserts that Ames is strictly 

liable for the violation of the safety standard in section 56.9201 because it controlled the pipe 

unloading area and supervised the unloading of the pipes. S. Br. at 8-10. She argues that an 

operator is strictly liable for violations that take place under its control or supervision. S. Br. at 

10-19. 

At the outset, we recognize that the judge was incorrect in stating that Orton was a 

subcontractor of Ames. However, in view of the judge’s findings regarding Ames’s supervision 

of the unloading process, her error about Orton being Ames’s subcontractor does not control the 

outcome of this appeal.4 

4 The Secretary litigated the case before the judge on the theory of Ames’s strict liability 

for the violation based on its control of the pipe unloading area and supervision of the unloading 

process. The Secretary’s theory was clearly set forth in her written Pre-Hearing Statement, and 

in her opening statement at trial. Tr. 22-24. Hence, Ames cannot claim surprise, even though 

the judge’s decision relied on the erroneous conclusion that Orton was Ames’s subcontractor. 

As the Supreme Court stated in Dandridge v. Williams, 397 U.S. 471, 475-76 n.6 (1970), “[t]he 

prevailing party may, of course, assert in a reviewing court any ground in support of his 

judgment, whether or not that ground was relied upon or even considered by the trial court. As 

the Court said in United States v. American Ry. Express Co., 265 U.S. 425, 435-36 (1924), ‘[I]t 

is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a 

decree any matter appearing in the record, although his argument may involve an attack upon the 

reasoning of the lower court or an insistence upon matter overlooked or ignored by it’” (other 

citations omitted). See also BethEnergy Mines, Inc., 15 FMSHRC 981, 985 n.4 (June 1993), 

citing Sec’y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1529 (Aug. 1990) 

(citations omitted). 

33 FMSHRC Page 1610
We conclude that the issue of Ames’s liability in this case is appropriately resolved by 

referring to the plain language of the Mine Act and the undisputed facts in the record. Ames has 

stipulated that during the relevant period of time it “was a contractor constructing a tailings dam 

and raising the tailings dam, pipe, and roadways at the Kennecott Tailings Facility near Magna, 

Utah.” Stip. 4. As such, Ames was an operator of the mine, since section 3(d) of the Mine Act 

defines that term 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). Ames’ concession that it was a contractor constructing a tailings 

dam places it squarely within the statutory definition of “operator.” 

Section 110(a) of the Mine Act provides that “[t]he operator of a coal or other mine in 

which a violation occurs of a mandatory health or safety standard . . . shall be assessed a civil 

penalty by the Secretary . . . .” 30 U.S.C. § 820(a). This provision has been held to impose 

liability for violation of a standard against an operator without regard to fault. Allied Products 

Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Sewell Coal Co. v. FMSHRC, 686 F.2d 

1066, 1071 (4th Cir. 1982); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988), 

aff’d on other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8 FMSHRC 1632, 1634-36 

(Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989). 

Since a violation of a mandatory standard occurred at a mine at which Ames is an 

operator, under the plain meaning of section 110(a), Ames could be found strictly liable for that 

violation. Ames maintains, however, that the Mine Act’s liability scheme should not apply to a 

situation like the one here, in which the Secretary seeks to hold independent contractor Ames 

liable for a violation committed by a third party with which Ames has no contractual 

relationship. A. Br. at 17-19. 

Section 110(a) imposes strict liability for violations which occur at a mine. However, as 

the D.C. Circuit has noted, strict liability “means liability without fault[;] [i]t does not mean 

liability for things that occur outside one’s control or supervision.” Sec’y of Labor v. National 

Cement Co. of Cal., Inc., 573 F.3d 788, 795 (D.C. Cir. 2009) (citation omitted). Here, because 

Ames supervised a process, the unloading of pipes, it is responsible for the violation that 

occurred. Ames’s emphasis on its lack of a contract with Orton trucking is, at bottom, an 

argument that it lacked the level of control needed to justify imposition of strict liability for 

violations committed by Orton drivers. Because, as discussed below, we conclude that Ames was 

cited for an unsafe condition that occurred in connection with an activity for which it had 

supervisory responsibility, we find the lack of a contract to be immaterial to our determination.5 

Indeed, this approach is consistent with the Commission’s decision in Joy Technologies, 

Inc., 17 FMSHRC 1303 (Aug. 1995). In that case, Joy entered into a contract with the mine 

operator for the sale of equipment. Although Joy made follow-up visits to the mine to 

5 Although we recognize that a contractor may also be liable under the Mine Act for 

violations which occur within an area of the mine which the contractor controls, we need not 

reach that issue in this case, because Ames is liable on the basis of its supervision of the 

unloading process. 

33 FMSHRC Page 1611
troubleshoot the equipment, it argued that it was not an independent contractor under the Mine 

Act because there was no contract to perform those services. The Commission nevertheless 

determined that Joy could be held liable for the Mine Act’s training requirements, noting “‘[o]ur 

focus is on the actual relationships between the parties, and is not confined to the terms of their 

contracts.’” 17 FMSHRC at 1306 (quoting Bulk Transp. Serv., 13 FMSHRC at 1358 n.2). This 

principle was cited approvingly by the Tenth Circuit. Joy Techs., Inc., 99 F.3d 991, 995-96 (10th 

Cir. 1996). Accordingly, in determining that liability is appropriately imposed against Ames, we 

have considered its relationship with Orton’s drivers, particularly during the unloading process, a 

process which Ames supervised and controlled. This focus is consistent with our case law, albeit 

in a different context.6 

Ames was cited for a violation of 30 C.F.R. § 56.9201, which requires that “[e]quipment 

and supplies shall be . . . unloaded in a manner which does not create a hazard to persons from 

falling or shifting equipment or supplies.” The judge found that it was “Ames’ responsibility to 

unload the pipes from the truck.” 32 FMSHRC at 349. Not only is this finding supported by 

substantial evidence, it is not even seriously disputed by Ames. See Tr. 264-65 (testimony of 

Robert Parker, Ames’s Industrial Division Manager, that unloading the pipes was Ames’s 

responsibility under its contract with Kennecott). Indeed, Ames stipulated: 

Orton drivers are instructed to follow the policies and procedures of the 

recipient regarding safety and the unloading process. Orton drivers are 

instructed to follow the instructions of the supervisor of the unloading 

process. 

Tr. 271. 

Moreover, the record contains a Safety, Health, and Environmental Action Plan (SHEAP), 

which is a site-specific project safety plan detailing the safety requirements imposed on Ames by 

Kennecott. Tr. 240-41; Gov’t Ex. 8; Stip. 21. The SHEAP includes a section on the safe 

unloading of materials using forklifts. Tr. 240-41; Gov’t Ex. 8, sec. 3.g., at 3. Under the section 

entitled “Ames Construction Safety Management – Authority,” the SHEAP provides: 

“Supervisors, foremen and safety supervisors are authorized to stop work that would place 

6 We therefore reject Ames’s contention that the imposition of strict liability in this 

context is a “new policy,” which has been implemented without the benefit of rulemaking or 

even deliberate internal policy-making, and that its lack of notice that the statute would be 

enforced in the manner that it was in this case deprives it of due process. A. Reply Br. at 6, 8. 

The imposition of liability on a contractor for violations that occur during a process supervised 

by the contractor is not a new policy. It is entirely consistent with, and indeed required by, the 

Mine Act’s fundamental imposition of responsibility for activities undertaken, controlled or 

supervised by any contractor as an operator regulated under the Act. See 30 U.S.C. § 802(d) 

(definition of operator regulated under the Act includes “independent contractors”). In this case, 

we are simply applying this well-established legal principle to a novel set of facts. Thus, we also 

disagree with our dissenting colleague’s statement that we are “[b]reaking new ground.” Slip op. 

at 9. 

33 FMSHRC Page 1612
 

 

employees, equipment or property in immediate danger, and to ensure that all unsafe conditions 

are corrected.” Gov’t Ex. 8, at 5. Obviously, the ability to stop unsafe work implies supervisory 

authority. 

The operator’s own Job Safety Analysis (“JSA”) also supports the judge’s finding that 

Ames was responsible for unloading the pipes. The JSA is a document used by Ames that 

identifies the potential hazards of forklift operations. Gov’t Ex. 9. The JSA recommends that 

forklift operators “make sure [the] load is secure before removing straps from truck or trailer.” 

Gov’t Ex. 9; Stip. 19. At the time of the incident, Ames crew members were familiar with the 

JSA. 32 FMSHRC at 349 (citing Tr. 140). 

However, the operator argues that Florez was without power or authority to prevent Kay 

from proceeding with the unloading. A. Br. at 15-16. The record does not support this view. 

Ames controlled the drivers’ access to the site and, upon admission, escorted them to the 

unloading area. 32 FMSHRC at 349 (citing Tr. 151). Orton drivers were required to follow the 

instructions of the supervisor of the unloading process. Tr. 271. Florez himself testified that it 

was his responsibility to ensure that Kay stayed safe. Tr. 167. Moreover, the Ames 

superintendent at the facility testified that on past occasions, he had prevented drivers from taking 

actions he believed were dangerous. Tr. 229. At oral argument, Ames’s counsel acknowledged 

that on previous occasions Ames employees had stopped truck drivers from loosening the straps. 

Oral Arg. Tr. 18. In any event, whether Kay would have refused to obey instructions from 

Ames’s agents is beside the point, because no attempt was made to prevent him from beginning 

the unloading process, or to prevent him from encountering any other hazards. Tr. 169-74. 

Ames disputes that the unloading of pipes had begun when Kay was killed, because the 

operator had not intended it to commence as of the time when Kay began to loosen the straps. 

This position is untenable as a matter of law and common sense. The judge found that unloading 

had in fact begun at that point: “[O]nce [Ames] escorted Kay to the loading site and left an 

employee with him . . ., the unloading process had begun and Ames was responsible for doing it 

correctly.” 32 FMSHRC at 351. The judge further found that the unloading began with Kay 

loosening a number of straps running the entire length of the flatbed, and that Florez should have 

seen this and stopped Kay from proceeding. Id. (citing Tr. 114-15). 

According to the judge, unloading began with the first steps necessary to the process. Not 

only is her finding supported by substantial evidence, it would defy logic to hold otherwise. 

Before Kay’s intervention, the pipes were on the truck. Afterward, at least one had departed the 

truck as a result of human activity. This is “unloading” by any reasonable definition. 

33 FMSHRC Page 1613
III. 

Conclusion 

In summary, Ames was an operator of the mine pursuant to the clear language of section 

3(d) of the Mine Act, because it was a contractor performing services at the mine. As such, it is 

liable under section 110(a) of the Mine Act, without regard to fault for the violation at issue, since 

the unloading of the pipes from the trucks (which was the subject of the citation) was Ames’s 

responsibility. Accordingly, we conclude that the judge’s decision that Ames violated 30 C.F.R. 

§ 56.9201 should be affirmed in result. 

_/s/ Mary Lu Jordan____________________ 

Mary Lu Jordan, Chairman 

_/s/ Michael G. Young__________________ 

Michael G. Young, Commissioner 

_/s/ Robert F. Cohen Jr._________________ 

Robert F. Cohen, Jr., Commissioner 

_/s/ Patrick K. Nakamura________________ 

Patrick K. Nakamura, Commissioner 

33 FMSHRC Page 1614
Commissioner Duffy, dissenting: 

I would reverse the judge and vacate the citation. 

As I see it, strict liability of mine operators under the Mine Act is derived from the 

interrelationship of sections 104(a) and 110(a) of the statute. The former imposes liability on an 

operator who “has violated” the Act, a mandatory standard, an order, or a rule promulgated under 

the Act. 30 U.S.C. § 814(a). The latter imposes liability for a civil penalty sanction on an 

operator of a mine “in which a violation occurs.” 30 U.S.C. § 820(a). Thus, an operator can be 

held liable for violations it commits outright or through its agents, or it can be held liable if a 

violation occurs anywhere within a location deemed to be a mine that is owned, controlled, or 

supervised by that operator. The Commission has explicitly found section 110(a) to be the 

ultimate source of operator liability: 

The liability of an operator is governed by section 110(a), 30 U.S.C. 

§ 820(a), which states: “The operator of a . . . mine in which a 

violation occurs of a mandatory health or safety standard . . . shall 

be assessed a civil penalty. . . .” (Emphasis added). The occurrence 

of the violation is the predicate for the operator’s liability. 

Asarco, Inc.–Northwestern Mining Dep’t, 8 FMSHRC 1632, 1635 (Nov. 1986), aff’d, 868 F.2d 

1195 (10th Cir. 1989). 

In the instant case, the mine site where the violation occurred included multiple 

employers, among them independent contractor Ames. Rather than look to section 110(a), and 

determine whether Ames was an “operator” of the mine for purposes of the violation of 30 C.F.R. 

§ 56.9201, the majority departs from Commission precedent and allocates liability not by reason 

of the area of the mine where the violation occurred, but, rather, by reason of the “process” for 

which a given “operator” is responsible. Indeed, the majority explicitly declines to reach the 

issue of whether Ames could be held liable on the basis that it controlled the area where the 

violation of section 56.9201 occurred. Slip op. at 5 n.5. 

While I appreciate that the majority is attempting to resolve the issue this case presents on 

grounds as narrow as possible, I cannot join them. Breaking new ground in finding the source of 

an operator’s liability, as the majority does, may result in unforeseen problems. 

I instead conclude that if Ames is liable at all for the violative conduct of Mr. Kay, it 

would be on the basis that Ames was in control of the area encompassing the Kennecott Tailings 

Facility where the fatal accident took place. However, I further conclude that Ames should not be 

held strictly liable for the violation committed by Mr. Kay because he was not an employee of 

Ames and because he engaged in unforeseeable conduct that cannot be attributable to Ames. 

In Western Fuels–Utah, Inc., 10 FMSHRC 256 (Mar. 1988), then Chairman Ford in his 

dissent in that case made a compelling argument in favor of allowing an operator to assert an 

affirmative defense against a citation if the operator could show that it was blameless and that the 

violation was owing to the unforeseeable and idiosyncratic conduct of its employee. Id. at 263-

33 FMSHRC Page 1615
72. The Chairman’s position did not prevail among three of his colleagues (id. at 258-62), or on 

appeal to the D.C. Circuit (Western Fuels–Utah, Inc. v. FMSHRC, 870 F.2d 711 (D.C. Cir. 

1989)), but I firmly believe the principles upon which he based his dissent are fully applicable in 

instances such as are presented in this case, where the violative conduct is carried out by a nonemployee of the cited operator. It may well be that a principle adopted under the OSHA statute 

should also be applicable here: 

Fundamental fairness would require that one charged with and 

penalized for violation be shown to have caused, or at least to have 

knowingly acquiesced in, that violation. Under our legal system, to 

date at least, no man is held accountable, or subject to fine, for the 

totally independent act of another. 

Brennan v. OSHRC, 511 F.2d 1139, 1145 (9th Cir. 1975). 

Just because the Secretary may be authorized to take a particular action, doesn’t 

necessarily mean that she should. This is just such an instance. I would therefore encourage 

Ames to seek judicial review of whether the strict liability doctrine under the Mine Act should 

apply to an operator when a non-employee of that operator engages in unforeseeable conduct that 

violates the Act or the standards. 

_/s/ Michael F. Duffy___________________ 

Michael F. Duffy, Commissioner 

33 FMSHRC Page 1616
 

 

 

Distribution: 

Mark N. Savit, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2228 

Arlington, VA 22209 

Matthew B. Finnigan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway, Suite 1600 

Denver, CO 80202 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Margaret A. Miller 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

33 FMSHRC Page 1617
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
	

SUITE 9500
	

WASHINGTON, DC 20001

 July 27, 2011 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: 

v. : Docket Nos. CENT 2010-317-M 

: CENT 2010-318-M 

SPRING CREEK MATERIALS, 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). On July 14, 2011, Spring Creek Materials, Inc. (“Spring Creek”) filed with 

the Commission a document entitled “Petition for Discretionary Review.” Spring Creek seeks 

review of an order issued by Chief Administrative Law Judge Robert J. Lesnick on June 24, 

2011, in which he ruled that the Secretary’s late filed penalty petitions were accepted and that 

Spring Creek’s Motions to Dismiss were denied. 

We have determined that the judge’s June 24, 2011, decision is not a final decision 

ending his jurisdiction over this matter. In his decision, the judge found that the Secretary’s 

petitions for assessment of civil penalty should have been filed by May 3, 2010, but were filed 

on January 31, 2011. The judge determined that “given the unprecedented number of cases 

currently before the Commission, as well as the unprecedented number of penalty petitions 

pending before the Secretary, strict adherence to the 45-day time line is unrealistic.” Order at 2. 

Consequently, his decision is interlocutory in nature. As a result, Spring Creek’s petition is not a 

valid petition for discretionary review of a final decision under section 113(d) of the Mine Act, 

30 U.S.C. § 823(d), but rather is in the nature of a petition for interlocutory review. 

Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may 

only grant interlocutory review if certain conditions are met. First, it may grant review if the 

judge has certified that his or her interlocutory ruling involves a controlling question of law and 

that immediate review will materially advance the final disposition of the proceeding. Second, it 

may grant review if the judge has denied a party’s motion for certification of the interlocutory 

ruling to the Commission and the party files with the Commission a petition for interlocutory 

review within 30 days of the judge’s denial of such motion for certification. 

33 FMSHRC Page 1618
We have determined that neither condition set forth in Rule 76 has been met in this case. 

Accordingly, the petition filed by Spring Creek is denied. 

_/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 

33 FMSHRC Page 1619
 

Distribution: 

Michael Curtis, Esq. 

1814 Porter Wagoner Blvd. 

West Plains, MO 65775 

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 

33 FMSHRC Page 1620
ADMINISTRATIVE LAW JUDGE DECISIONS 
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

UNITED STATES CUSTOM HOUSE 

721 19TH Street, Suite 407 

Denver, Colorado80202
 

(303) 844-3409 / Fax (303) 844-3759 

July 7, 2011 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

 Petitioner 

v. 

LAFARGE NORTH AMERICA,

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No.: CENT 2010-4-M 

A. C. No.: 13-00125-197511 

Davenport Plant 

(Judge Patrick B. Augustine) 

Appearances: Joshua Raines Patrick, Esq., Office of the Solicitor, U. S. Department of Labor, 

Denver, Colorado 

For the Petitioner 

Mark Savit, Esq. and Donna Vetrano Pryor, Esq., Patton Boggs LLP, Denver, 

Colorado 

 For the Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER 

Procedural History 

This case is before the court upon a petition for assessment of civil penalties under 

Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et. seq. (the 

“Act”). This case involves the issuance of citations by the Department of Labor’s Mine Safety 

and Health Administration (“MSHA”) under Section 104(a) of the Act alleging four separate 

violations of 30 C.F.R. §56.14100(c) (“Citations”) at the Respondent’s Davenport Plant. On 

February 18, 2011 the court approved a Partial Settlement Agreement entered into between the 

parties in which all the other citations subject to this case were settled. Respondent timely 

contested the remaining Citations and a trial was held in Davenport, Iowa on May 4, 2011. 

Stipulation of Facts 

The parties stipulated to the following facts which were accepted into the Record at Tr.7: 

1. The Lafarge North America, Inc. Davenport Plant, Mine ID 13-00125 

(hereinafter “Lafarge”) is a Portland cement facility located in Iowa which operates on 

33 FMSHRC Page 1621
 

 

 

 

three, eight-hour shifts, working seven days a week. Total employment at the site is 

approximately 100 persons. 

2. Lafarge is engaged in mining in the United States and its mining operations affect 

interstate commerce. 

3. Lafarge is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §§ 801 et. seq. 

4. The Federal Mine Safety and Health Review Commission has jurisdiction in this 

matter. 

5. Citation Nos. 6413382, 6413383, 6413384 and 6413385 were properly served by 

a duly authorized representative of the Secretary of Labor upon an agent of Lafarge on 

the dates and places stated therein and were admitted into evidence for the purpose of 

establishing their issuance, and not for the truthfulness or relevancy of any statements 

asserted therein. 

6. With the exception of Petitioner’s Exhibit 10, which was admitted into evidence 

at the trial on May 4, 2011, the exhibits offered by the parties were stipulated to be 

authentic but no stipulation was entered into as to their relevance or the truth of the 

matters asserted therein. 

7. The proposed penalties will not affect Lafarge’s ability to continue in business. 

8. The operator demonstrated good faith in abating the violations. 

9. Unless otherwise stated, all the below stipulated facts were extant in 2009. 

10. Citation No. 6413382 relates to the Chevy 2500 pick-up Co. #70161. 

11. Citation No. 6413383 relates to the Ford F 250 pick-up Co. # 70152. 

12. Citation No. 6413384 relates to the Ford F 250 pick-up Co. #70147. 

13. Citation No. 6413385 relates to the Euclid haul truck Co. #70144. 

14. There have been no fatal accidents at the Lafarge Davenport Plant. 

15. There was no injury or accident in relation to Citation Nos. 6413382, 6413383, 

6413384 and 6413385. 

16. When performing the inspections that resulted in the issuance of Citation Nos. 

6413382, 6413383, 6413384 and 6413385, Inspector Howard Wood used no instruments 

to take measurements of the alleged movement in the ball joints and/or tie rods. 

17. When performing the inspections that resulted in the issuance of Citation Nos. 

6413382, 6413383, 6413384 and 6413385, Inspector Howard Wood did not have the 

subject vehicles raised in any manner. 

33 FMSHRC Page 1622
18. Inspector Howard Wood performed the inspection of the vehicles indicated in 

Citations 6413382, 6413383, 6413384 and 6413385 while the subject vehicles were on 

the ground as he was trained to do. 

19. Inspector Howard Wood did not rely on the service manual procedures or 

specifications for the above-referenced vehicles when performing his inspections of the 

steering linkages or when making the determination that a violation had occurred. 

The Cited Regulation 

The Petitioner alleges four separate violations of 30 C.F.R. §56.14100(c) which states as 

follows: 

when defects make continued operation hazardous to persons, the defective 

items, including self-propelled mobile equipment, shall be taken out of 

service and placed in a designated area posted for that purpose, or tag or 

other effective method of marking the defective items shall be used to 

prohibit further use until the defects are corrected. 

In order to establish a violation of the above regulation, the Petitioner must prove by a 

preponderance of the evidence; (i) the existence of a defect; (ii) continued operation would be 

hazardous to persons and (iii) the defective item was not removed from service until the defects 

were corrected. 

Discussion and Analysis 

The Petitioner has the burden of establishing some objective or reasonable standard 

which provides notice to the Respondent that certain actions or inactions would result in noncompliance with the standard. Gates & Fox Co. v. Occupational Safety & Health Rev. Comm’n, 

790 F.2d 154, 156 (D.C. Cir. 1986)(“[D]ue process...prevents...deference from validating the 

application of a regulation that fails to give fair warning of the conduct it prohibits or requires.”); 

see also Sec’y of Labor v. Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (Comm’n 

August 31, 1995). 

Inspector Howard Woods (the “Inspector”) testified that to test the ball joints, he looked 

under the cited vehicles while all four tires were on the ground and instructed a Lafarge 

employee to move the steering wheel. (Tr. 30). The Inspector admitted that he was looking for an 

excess of 1/8-inch movement in the ball joints. (Tr. 39). He testified that he relied on the 

measurements set out in the Commercial Vehicle Safety Alliance (“CVSA”), which requires 

maintenance of ball joints where there is movement in excess of 1/8-inch “measured with hand 

pressure only”. (Ex. C-4; Tr. 39). 

Mr. Ron Medina, the Petitioner’s expert witness, also an employee of MSHA, suggested 

that the CVSA guidelines were not applicable to any of the vehicles subject to the Citations 

because the CVSA guidelines generally apply to heavy equipment in excess of 26,000 lbs. (Tr. 

171). Mr. Medina found, in his expert opinion, that the 1/8-inch standard used by the Inspector 

was not applicable. In addition, Mr. Medina could not state any measurement or standard that 

would be considered objective or reasonable to test the ball joints. (Tr. 194). 

33 FMSHRC Page 1623
Mr. Medina then went on to address tests, standards, methods and measures set forth in 

service manuals of the respective vehicles. However, none of these tests were applied by the 

Inspector in the issuance of the citations. (Ex. C-5, C-8, C11 and C-12 and Tr. 145). The court 

notes the attempt to make these service manuals applicable after the fact to support the issuance 

of the Citations does not provide the Respondent with objective notice of the criteria applicable 

in order to assess compliance with the cited standard before the issuance of theCitations. In 

short, if MSHA’s own employees could not agree by the time of trial on the proper basis and 

standards for examining vehicle ball joints, how could Respondent have proper notice of the 

appropriate standard of compliance? 

The Petitioner has the burden of demonstrating some consistent and objective measure of 

establishing a violation of the cited standard. When the Inspector and the Petitioner’s expert 

witness disagree on what the consistent and objective criteria should be in order to determine 

compliance, the court finds it a violation of fair notice and due process to hold the Respondent to 

a moving target. Accordingly, the Petitioner has failed to carry its burden and Citations 

6413382, 6413383, 6413384 and 6413385 will be VACATED. 

ORDER 

Based upon the foregoing, it is ORDERED that Citations 6413382, 6413383, 6413384 

and 6413385 are VACATED. 

_/s/ Patrick B. Augustine ______________ 

 Patrick B. Augustine 

 Administrative Law Judge 

Date: 

Denver, Colorado 

33 FMSHRC Page 1624
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

July 12, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2009-483 

Petitioner, : A.C. No. 12-02010-185538-03 

: 

v. : 

: 

BLACK BEAUTY COAL COMPANY, : 

Respondent. : Mine: Air Quality 

DECISION 

Appearances:		 Natalie Lien and Nadia Hafeez, Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, for Petitioner; 

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for 

Respondent. 

Before:		 Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Black Beauty Coal 

Company at its Air Quality mine, 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” or “Act”). The case includes 

34 violations with a total proposed of $171,483.00. As set forth more fully below, the parties 

have agreed to resolve all but three of the violations, leaving those for decision here. The parties 

presented testimony and documentary evidence at the hearing held in Evansville, Indiana 

commencing on April 20, 2011. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Black Beauty Coal Company (“Black Beauty”) operates the Air Quality #1 mine (the 

“mine”), a bituminous coal mine near Vincennes, Indiana. The mine is subject to regular 

inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to 

section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Black Beauty is the 

operator of the Air Quality mine, that the mine’s operations affect interstate commerce, and that 

it is subject to the jurisdiction of the Mine Act. Jt. Stip.1-5. Black Beauty, like a number of 

other mines in the Indiana-Illinois area, is owned by Peabody Energy. The mine is a large 

operator, utilizing the room and pillar mining method. (Tr.8-9). 

33 FMSHRC Page 1625
a. Citation No. 8415328 

On April 10, 2009, Inspector Phillip Herndon issued Citation No. 8415328 to Air Quality 

for a violation of section 75.220(a)(1) of the Secretary’s regulations. The regulation requires the 

mine to comply with the provisions of its approved roof control plan. The citation alleges that: 

A continuous miner operator was observed positioned in the Red 

Zone between the Co. No. 53 Joy continuous miner and the No. 1 

entry coal rib on the MMU-001 as he was tramming out of the 

face. The miner operator was removed immediately from the 

unsafe condition. The condition was a factor that contributed to 

the issuance of Imminent Danger Order No. 8415327 dated 

04/10/2009. Therefore no abatement time was set. 

The inspector found that a serious injury was highly likely to occur, that the violation was 

significant and substantial, that one person would be affected, and that the violation was the 

result of moderate negligence on the part of the operator. The Secretary has proposed a civil 

penalty in the amount of $9,882.00. An imminent danger order was issued with this citation. 

1. The Violation 

Phillip Herndon, an MSHA mine inspector, has worked for the Mine Safety and Health 

Administration for the past four years. He has worked in surface and underground coal mines 

since 1982, and worked at Air Quality for eight years prior to becoming a mine inspector. On 

April 10, 2009, Herndon was at the Air Quality mine to conduct a spot inspection. Terry 

Courtney, the mine foreman, accompanied Herndon on that day. During the course of his 

inspection, Herndon issued a citation for a ventilation violation at the working face and, as a 

result, the continuous mining machine had to be pulled back from the face area to make room to 

extend a curtain. Herndon testified that, while the continuous miner was being trammed out, the 

miner operator entered the red zone. (Tr. 15 -18). 

Herndon explained that the Red Zone is any place considered a pinch point between the 

continuous mining machine and the coal rib, and any area around the machine where the miner 

operator could be crushed. (Tr. 18). The roof control plan requires that “no one shall be in red 

zone while a miner is being trammed from place to place or while being positioned in a working 

place.” Sec’y Ex. 4, p. 6, no. 8. Herndon demonstrated where Carie, the operator of the 

continuous miner, was standing, near the tail while tramming the machine, by drawing a line on 

the diagram on page 6a of the roof control plan. (Tr. 19- 20). Herndon testified that while he 

was writing up the ventilation violation he looked up, and saw Carie moving the machine while 

in the red zone. Herndon immediately issued an imminent danger order to stop the action and 

remove Carie from his position. Herndon believed that the pump motor had not been turned off 

while Carie was standing between the miner and the rib. (Tr. 21); Sec’y Ex. 2. 

33 FMSHRC Page 1626
At the close out conference, Herndon asked Courtney where Carie was standing, and 

Herndon understood Courtney to agree that Carie was standing in the tail area with the pump 

motor in the on position. (Tr. 23). The red zone is created only when the continuous miner is 

energized, i.e., the pump motor is running. Cooper v. Ingersoll Rand Co., 628 F. Supp. 1488, 

1492 (W.D. Va. 1986). There are a number of tasks that the miner operator must undertake in an 

area next to the mining machine while the pump motor is turned off. Conducting those activities 

with the pump motor off is not violative of the red zone prohibition. (Tr. 26). However, if a 

miner is positioned between the mining machine and the rib while the pump motor is running, 

the miner is considered to be in the “red zone.” 

Trent Harris, a lead man for Air Quality, has been in the mining industry for a number of 

years and was present when Herndon issued the imminent danger order. (Tr. 37) According to 

Harris, Herndon first issued a citation for “low air” and, as a result, Harris instructed Carie to 

reposition the miner in order to extend the ventilation curtain. Carie had to back up the 

continuous miner, and he did so in the proper position behind the machine. He backed the miner 

up about ten feet, then realized that the cable was too close to the miner, so he hit the button on 

the remote control to turn off the pump motor and, in effect, shut down the miner. Carie then 

stepped next to the miner to move the cable and the water line, at which point Herndon shouted 

out that there was an imminent danger, as he believed Carie to be positioned between the rib and 

the machine while the continuous miner was still in operation. Harris could not understand why 

Herndon believed this to be an imminent danger because, in his view, the pump motor was 

turned off. Carie was not near the miner when it was tramming, but after turning off the pump 

motor he did walk next to the miner. Harris is certain that the pump motor had been turned off 

prior to Carie entering the red zone to move the cable. (Tr. 37-38). 

Matthew Carie was operating the continuous miner when Herndon issued the citation. 

(Tr. 37). Carie was a roof bolter in April, 2009, but was filling in to operate the continuous 

mining machine. Carie was trained in the concept of the red zone when he received other 

training on November 10, 2008. On January 16, 2009, he was task trained on the operation of 

the continuous miner, and specifically to “keep workers out of red zone.” (Tr. 45-48). 

On April 10, 2009, Carie was operating the continuous miner when he was told by Harris 

to back the miner out of the entry to allow workers to extend a ventilation curtain. He backed 

out, turned off the machine, but was then instructed to back the machine further out so that the 

curtain could be accessed. After beginning to do so, he realized that the cable was in the way, so 

he once again turned the pump motor off, and started to walk toward the machine. As soon as he 

reached the tail area, Herndon shouted at him about the red zone. Carie credibly testified that the 

pump motor on the miner was turned off at the time he entered the tail area to move the cable. 

(Tr. 49-50). 

Terry Courtney, has worked more than 17 years in the mining industry and has held a 

number of positions at Air Quality. (Tr. 61). He was present when Herndon issued the red zone 

citation, but he had his back to the miner and did not observe the condition alleged by Herndon. 

After Herndon issued the ventilation citation, Courtney’s attention was directed toward 

correcting the condition so he flagged off the loader while the ventilation was being corrected. 

(Tr. 62). He turned to see Carie near the miner only after he heard Herndon shout that there was 

33 FMSHRC Page 1627
an imminent danger. (Tr. 62-63). Carie was near the tail and did not have his hands on the box, 

so Courtney understood that the pump motor was off. Even so, after Herndon issued the order, 

Courtney had Carie removed from the mine, both to investigate the allegation and to terminate 

the citation. Courtney explained that Air Quality takes the issue of the red zone very seriously, 

as they have had a fatality and another miner seriously injured when in the red zone. Violating 

the company policy regarding the red zone will result in termination of an employee. (Tr. 

63-65). 

Gerald Haantz is the operation superintendent with Air Quality and was the underground 

mine superintendent at the time the citation was issued by Herdon. (Tr. 76). He conducted an 

investigation into the incident and, based upon the information he learned, found that Carie was 

not in the red zone as alleged and, therefore, Carie was not terminated from his employment. 

The mine has let go two miners in the past few years for violating the red zone rule. (Tr. 77-78). 

While there is no question that Carie was standing next to the continuous miner, between 

the machine and the rib, which is an area that is considered the red zone, there is clearly a 

dispute of fact as to whether or not the pump motor was in the off position while Carie was in 

that area to move the cable. Just prior to entering the red zone, Carie was backing out the 

machine for the second time. He explained that he turned off the pump motor after tramming 

and before entering the red zone. (Tr. 52). Herndon testified that Carie was tramming, and that 

the pump motor was on while Carie was in the area between the rib and miner. (Tr. 21). 

Courtney did not know if the motor was off, but Harris testified that Carie had turned off the 

motor, and Carie asserts that he turned off the motor prior to entering the area near the miner. 

(Tr. 38, 63-64). The Secretary’s evidence is minimal at best, as the inspector did not describe 

how he knew the pump motor was on, other than to say that he observed Carie tramming with it 

on. (Tr. 21). The other witnesses all agree that Carie was tramming before he entered the red 

zone and, therefore, would have had the pump motor running while tramming. It is quite 

plausible that Herndon observed the tramming but did not see Carie de-energize the pump motor 

prior to entering area to move the cable. I find Carie to be a credible witness and credit his 

testimony that the pump motor was not running when he walked between the rib and the 

continuous miner. 

“The Mine Act imposes on the Secretary the burden of proving each alleged violation by 

a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration 

Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal 

Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co., 11 

FMSHRC 2148, 2152 (Nov. 1989). “The preponderance standard, in general, means proof that 

something is more likely so than not so.” In re: Contests of Respirable Dust, 17 FMSHRC at 

1838. I find that the Secretary has not met her burden of proof in this case and therefore the 

citation is vacated. 

b. Citation No. 9942562 

On April 8, 2009, Inspector Charles Weilbaker issued Citation No. 9942562 to Air 

Quality for a violation of Section 70.100(a) Secretary’s regulations. The citation alleges that: 

33 FMSHRC Page 1628
The average concentration of respirable dust in the working 

environment of the designated occupation was 2.512 milligrams 

per cubic meter which exceeds the 2.0 milligrams per cubic meter 

standard. This finding was based on the results of five (5) valid 

dust samples collected by the operator. The operator shall take 

corrective action to lower the respirable dust. The corrective 

action must be submitted to the MSHA District Manager for 

review. After the corrective action has been reviewed and 

acknowledged, the mine operator must sample each production 

shift until five (5) valid samples are collected. The operator must 

notify MSHA at least 24 hours in advance of the date and shift that 

sampling will commence. The samples must be submitted to the 

Pittsburgh Respirable Dust Processing laboratory. 

The inspector found that a serious injury was reasonably likely to occur, that the violation was 

significant and substantial, that 12 persons would be affected, and that the violation was the 

result of high negligence on the part of the operator. The Secretary has proposed a civil penalty 

in the amount of $18,271. 

1. The Violation 

The parties agree that the mine operator submitted the dust samples for MMU-001, as 

required by MSHA, and that the testing of the five samples indicated an exposure of 2.512, 

which constitutes a violation of the dust standard as alleged by the Secretary. The parties also 

agree, given the decisions issued by the Commission regarding respirable dust, that the violation 

is properly designated as S&S. Given the agreement of the parties, I find that a violation is 

established and that the violation is significant and substantial as alleged by the Secretary. The 

issues that remain for decision are the amount of negligence attributed to the operator and the 

number of persons affected. 

Weilbaker found that the violation was the result of high negligence on the part of the 

mine operator and that 12 persons were exposed to the dust. He testified that he is retired from 

MSHA, but was with MSHA for twenty years as a supervisory health and safety specialist. He 

has a BA, served as an industrial hygienist, received training in such, and worked as a mine 

inspector. As a part of his duties, he spoke regularly with mine management regarding 

conditions at the mine, including problems due to the excessive dust. His purpose was to 

encourage management to look for the source of the respirable dust when over-exposed and 

make changes as necessary. (Tr. 90-92). He issued the citation on MMU-001 after receiving the 

notice from the Pittsburgh lab. The results, Sec’y Ex. 6, show the five sample results to be 

3.438, 2.560, 4.259, .897 and 1.408. (Tr. 96). He looked at the total number of people on the 

section and the fact that several of the concentrations were very high, and believed that the 

exposure continued into the second shift, thereby exposing twelve persons in all. Weilbaker 

determined that 6 of the 9 persons on the shift would have been affected, including the miner 

operator, roof bolters, and car operators. Further, both shifts were exposed, thereby creating an 

exposure to 12 miners in total. (Tr. 96); Sec’y Ex. 6. However, there were no samples taken on 

the second shift and no evidence of production amounts, such that Weilbaker can only presume 

33 FMSHRC Page 1629
 

that an over exposure occurred on that shift as well. (Tr. 96). 

Weilbaker determined that the negligence was high based upon what he knew about the 

dust conditions at the mine, prior samples, and the conversations he held with persons at the 

mine after he recieved the results of the sampling. After he received the results of the samples, 

Weilbaker called the mine and spoke with Ron Madlen in an attempt to discover the problem 

with the respirable dust and the over exposures. (Tr. 98). From his conversation he understood 

that the mine had been cutting into rock, causing the higher than normal concentration. (Tr. 

98-99). Weilbaker reviewed the previous bi-monthly samples, and found that the samples were 

lower while the production higher, leading him to agree with the conclusion that the mine had 

been cutting rock at the time of the overexposure. Based upon his experience, he testified that 

the dust is easier to see when cutting rock and should be a good indication that there is high 

respirable dust during that time and, therefore, greater precautions are necessary. (Tr. 98-100). 

The mine asserts, on the other hand, that there are a number of scenarios that can result in high 

dust samples. Further, and more significantly, Air Quality has dealt with the issue of rock in the 

seams for an extended period of time and its ventilation plan takes the cutting of rock into 

consideration. The mine disagrees that miners working on the section the day the samples were 

taken could see a significant increase in dust in the air, particularly when the production was 

reduced during those shifts. (Tr. 102). 

Weilbaker asked the mine to amend the ventilation plan in order to abate the violation. 

(Tr. 100). Although the mine had an approved plan in place and they may well have been in 

compliance with the plan when the over exposure was found, Weilbaker believes they should 

have done more. He agrees that there are reasons other than cutting into rock that would lead to 

high concentrations of dust. The set of samples that the mine provided prior to this violation 

indicate that the mine was in compliance when that set was sampled. Further, Air Quality had 

not been cited for a violation of dust concentration since January 2008 and it had averaged under 

2.0 mg for some period of time. (Tr. 102). 

The conclusion drawn by Weilbaker, that the failure on the part of the mine to allow the 

overexposure to occur was the result of high negligence, is not supported by the record as a 

whole. Since any number of items, or a combination thereof, could have caused the 

overexposure, and there is no credible evidence that the mine saw or was aware of high 

concentrations at the time of sampling, the high negligence has not been demonstrated. Nor is 

there substantial evidence that the mine was put on notice through earlier sampling that there 

was a dust issue to be addressed. The same is true for the number of persons exposed. 

Therefore, I find that the negligence was moderate and that the three persons who were wearing 

pumps that demonstrated a concentration above 2.0 mg were exposed. However, I do find over 

exposure to dust concentrations for three persons to be a serious violation and I assess a penalty 

of $10,000. 

c. Citation No. 8017946 

Inspector James Preece issued this citation for a violation of Safeguard No. 7018511, 

which requires safe access to travel under conveyor belts. The citation states: 

33 FMSHRC Page 1630
An adequate cross under was not being provided on the 4 West 

“A” belt conveyor located at the No. 1 crosscut. Multiple visible 

tracks were observed underneath the moving belt conveyor inby 

the haulage travel road towards the 4 main North flop gate. The 

height was measured from the mine floor to the bottom of the 

moving belt and measured from 4.5 to 6 feet. The exposed area 

above the mobile equipment tire tracks measured 39 feet in length. 

Preece designated the violation as significant and substantial, with moderate negligence, and a 

penalty of $946.00 has been proposed. 

1. The Violation 

James Preece has been an inspector for the Mine Safety and Health Administration since 

October 2000. He began his career with MSHA as a surface specialist, then became a health 

specialist and, finally an inspector. He has worked in underground coal mines since 1975, is a 

graduate of the West Virginia school of technology, and has a mining engineering degree. (Tr. 

123-125). Preece testified that on April 8, 2009, he was conducting a roof control evaluation at 

the mine and was accompanied by representatives of the mine during that evaluation. (Tr. 125). 

Prior to traveling underground, Preece reviewed the mine file, including the safeguard at 

issue. (Tr. 126). While in the area of the 4 west A belt he observed footprints and tire tracks 

through the area, including under the unprotected belt conveyor. Preece photographed the area. 

Sec’y Ex. 12. The photographs indicate foot prints and tire tracks under the conveyor belt in 

areas not designated as safe crossing locations. In this part of the mine, Preece explained, there 

were two areas that were designated as cross-unders for this belt. One area was a roadway not 

far from the area cited, and the other area was a cross-under for miners on foot. The miners were 

not using the designated areas to travel under the conveyor and, instead, were taking shortcuts 

and walking under the belt conveyor in the areas cited by Preece.(Tr. 126-128); Sec’y Ex. 12. 

The tracks and footprints under the belt lead Preece to believe that vehicles and foot 

traffic were crossing under the belt conveyor at an area not designated for such traffic. Further, 

the areas were not protected against the moving belt overhead. Preece testified that any number 

of vehicles could be using the undesignated cross-under, including vehicles that transport miners. 

(Tr. 128). Preece measured the height of the belt, over the course of 39 feet and the belt ranged 

from 4.5 feet to 6 feet above the travel area. Preece believes, given the need to examine and 

clean around the belt, there were many miners crossing under the belt each day in areas that were 

not protected. In his experience, a miner would contact the moving belt above and would suffer 

serious injuries after becoming entangled. Although Preece observed no one traveling under the 

belt, the footprints and tire tracks demonstrate that persons were crossing under the belt at the 

cited location. (Tr. 130-131). Preece explained that his concern was the hazard of the exposure 

to the moving belt. Preece indicated that crossing under the belt in the area cited, either on foot 

or while riding in mobile equipment, is likely to result in a miner coming into contact with the 

moving belt and rollers, thereby leading to an injury. (Tr. 132). 

33 FMSHRC Page 1631
Sylvester DiLorenzo, the Vincennes field office supervisor, testified on behalf of the 

Secretary regarding the issuance of the safeguard that was the basis for the citation written by 

Preece. He has been with MSHA since May 2005 and had 30 years prior experience in the coal 

mining industry. (Tr. 114). Safeguard No. 7018511 was issued on June 4, 2003. (Tr. 115-116). 

The inspector who issued the safeguard was not available to testify but the notes were available. 

DiLorenzo reviewed the notes and testified regarding the basis for the safeguard. (Tr. 115). 

DiLorenzo explained that the hazard addressed by the safeguard is miners crossing under the 

moving unguarded conveyor belts and coming in contact with the moving belt and rollers. (Tr. 

116-117). The safeguard cited 75.1403-5(j) which requires that “[p]ersons should not cross 

moving belt conveyors, except where suitable crossing facilities are provided.” The notes of the 

inspector who issued the safeguard, Sec’y Ex. 9, address the hazard as contacting the moving 

belt and being injured as a result. The notes include mention that contact with the belt is the 

hazard, and also that mud and water constitute tripping hazards under the belt. DiLorenzo does 

not understand the safeguard to include only foot traffic, and, in his view, it includes moving 

equipment (Tr. 122). 

Ron Madlem worked at Air Quality for 17 years. His last position at the mine was safety 

supervisor. (Tr. 145). He accompanied Inspector Battistoni in 2003, on the day Battistoni issued 

the safeguard. At that time Madlem observed miners shoveling a coal spill on the back side of 

the belt. The miners had walked under the belt to access the area to be shoveled. (Tr. 146). 

There were cross-unders nearby, but, like the citation issued by Preece, the miners chose to use a 

different route under the belt instead of using the designated route with guarded cross-unders. 

(Tr. 147). In Madlem’s view, the use of vulcanized splices greatly reduces the breaks in the belt 

and thereby reduces the possibility of injury to a miner crossing under the belt. (Tr. 148). When 

the safeguard was issued it was in an area where, given the size of the pathway used by the 

miners, there was no vehicle access. (Tr. 149-150). In order to terminate the safeguard in 2003, 

a cross under was installed. Madlem stated that the safeguard made no mention of, and therefore 

does not apply to, vehicle traffic. (Tr. 150). 

Rick Carie is the assistant manager of the mine. (Tr. 154). He traveled with Preece at the 

time the citation was issued. (Tr. 155). Carie testified that there were two cross-unders in the 

area, one on the road that leads under the conveyor and another for foot traffic. (Tr. 155). In the 

unlikely event that vehicles drive under the belt at an unprotected area, the vehicles have 

canopies, and, even for those few vehicles that do not, the belt is high enough that one can avoid 

the belt by ducking under the conveyor. The cross-under that was a road designated for use by 

vehicles had been in use for four to five years. The other crossing was for miners on foot and 

was installed in an effort to avoid using the road where vehicles traveled. (Tr. 156). The mine 

operates three shifts, with production on the first two shifts. During the third shift, maintenance 

is conducted and the belts are often shut down. In addition to maintenance activities, the belts 

are cleaned and rock dusted while shut down. (Tr. 157). Carie believes that if someone did cross 

under the belt in the area designated by Preece, the conveyor was high enough above the ground 

that one could easily walk under, although some ducking may be required. (Tr. 160). 

I. The Underlying Safeguard 

Black Beauty alleges that the notice to provide safeguard is invalid and, therefore, the 

33 FMSHRC Page 1632
citation issued for a violation of such should be vacated. Black Beauty makes two arguments in 

support of its contention. First, Black Beauty argues that the notice to provide safeguard is not 

valid because there was no transportation hazard and the safeguard, therefore, does not 

specifically identify the nature of the hazard. Given that there were safe areas to cross under the 

belt, i.e., one for vehicles and one for foot traffic, within a short distance of the area cited, there 

can be no hazard. Second, Black Beauty argues that the notice to provide safeguard does not 

apply to the condition cited in this instance. A strict construction of the safeguard reveals that it 

addressed only foot traffic under the conveyor belt and did not apply to vehicles traveling under 

the belt. Black Beauty argues that “the safeguard was issued to specifically address walking 

under the conveyor belt in wet and sloppy conditions.” 

The Secretary argues that the notice to provide safeguard identifies a transportation 

hazard as well as the conduct required to remedy the hazard. The safeguard, Sec’y Ex. 8, 

provides that “[t]his is a Notice to Provide Safeguard(s) requiring an adequate crossing facility at 

this location, and all other locations along belt conveyors where miners need to cross under the 

moving belt.” The paragraph contained above the safeguard notice describes that two miners 

advised the inspector they walked under the moving conveyor belt in an unguarded area where 

the mine bottom was wet and slippery. The Secretary argues that this safeguard refers to the 

standard, 75.1403-5(j), that deals with crossing under conveyors and the language specifically 

requires a safe crossing and describes with necessary specificity the hazard of coming into 

contact with the moving conveyor when walking or riding under it. Finally, this safeguard was 

issued in 2003 with presumably no objection to its validity until this hearing in 2011. The mine 

history, Sec’y Ex. 13, shows a number of safeguard violations in the 15 months prior to this 

citation, four of which are for violations of 74.1403-5(j). 

Section 314(b) of the Mine Act grants the Secretary authority to issue “[o]ther safeguards 

adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards 

with respect to transportation of men and materials.” 30 U.S.C. § 874(b). A representative of the 

Secretary, generally an inspector, may issue a notice to provide safeguard only after 

“determin[ing] that there exists . . . an actual transportation hazard this is not covered by a 

mandatory standard.” Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan. 1992). The Commission 

has held that, because a notice to provide safeguard is issued by an inspector and is not subject to 

the notice and comment procedural protections of section 101, the language of a notice to 

provide safeguard “must be narrowly construed” and is “bounded by a rule of interpretation 

more restrained than that accorded promulgated standards.” Southern Ohio Coal Co., 7 

FMSHRC 509, 512 (Apr. 1985). In recognition of such, and in order to provide proper due 

process, a notice to provide safeguard “must identify with specificity the nature of the hazard at 

which it is directed and the conduct required of the operator to remedy such hazard.” See Cyprus 

Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997). 

Black Beauty argues that hazards were not identified with the necessary specificity. I 

find to the contrary. The notice to provide safeguard requires “an adequate crossing facility at . 

. . all locations along belt conveyors where miners need to cross under the moving belt.” The 

safeguard clearly identifies the hazard of “crossing under a moving belt.” The hazard or danger 

of walking under a moving belt is commonly understood in mining and need not be spelled out 

any more specifically in order for this safeguard to be valid. The inspectors determined, and I 

33 FMSHRC Page 1633
agree, that the conditions, i.e. walking in an area under an unprotected moving conveyor, could 

affect the safe transportation of men and materials. Accordingly, I find that the notice to provide 

safeguard, is sufficiently specific as far as identifying the hazard. 

The order to provide safeguard is required to specify the “conduct required of the 

operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985). 

The safeguard is clear in this instance and states that “an adequate crossing facility” is required 

to prevent the hazard of crossing under the moving belt. I find that the safeguard meets the 

requirement for specifically setting forth the conduct required. Given that the safeguard 

describes a specific hazard of traveling under a moving belt and that an adequate crossing 

facility is necessary to remedy the hazard, I find the safeguard is valid. 

ii. Application of Facts to the Safeguard 

I have found that the safeguard is valid and I now look to whether or not the Secretary 

has met her burden to prove a violation of the safeguard. I find that she has not. The safeguard 

requires an adequate crossing where miners need to cross under the moving belt. The Secretary 

has produced no substantive evidence that miners were crossing under the belt while it was in 

operation. While the Secretary would have me assume that the tracks and prints were made 

under the belt while it was in motion, there is nothing to substantiate that assumption. In fact, 

the Air Quality witnesses testified that maintenance, rock dusting, and cleaning of the belt, a 

time when footprints and vehicle tracks may well be made under the belt, is done at a time when 

the belt is shut down. Unlike the admission of the miners that they walked under the moving belt 

when the safeguard was initially issued, there is no evidence here that miners walked under or 

rode on vehicles under the belt while it was in motion. 

The only testimony regarding discussions with miners by Preece is that he was told that 

guards were needed in the areas cited. He was not told that anyone had walked or ridden under 

the belt when it was in motion. While I agree with Preece that this is a heavily traveled area and 

that there was not adequate protection in the areas where he identified foot prints and tracks 

under the belt, I cannot agree that he has shown that any traffic was crossing under the belt while 

it was in operation. There is evidence to demonstrate that here are two areas in close proximity 

where both foot traffic and vehicles may safely cross under the belt while it is in motion . There 

is nothing to dispute that those safe cross-unders were not utilized while the belt was in motion. 

Based upon the above, the citation is vacated. 

II. PENALTY 

The principles governing the authority of Commission administrative law judge to assess 

civil penalties de novo for violations of the Mine Act are well established. Section 110(I) of the 

Mine Act delegates to the Commission and its judges the authority to assess all civil penalties 

provided in [the] Act. 30 U.S.C. § 820(I). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the Commission 

[ALJ] shall consider the six statutory penalty criteria: 

33 FMSHRC Page 1634
[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 on the operator’s ability to continue in business, [5] the 

gravity of the violation, 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). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator’s size and ability to continue in business and that the violations were abated in good 

faith. Jt. Stip. 9 -12; (Tr. 8-9). The history shows the past violations at this mine, including 

citations for the standards discussed above. The size of the operator is large. I have discussed 

the negligence and gravity associated with each citation above. Based upon the record as a 

whole, I assess the following penalties: 

Citation No. 8415328 Vacated 

Citation No. 8414037 $10,000 

Citation No. 8017946 Vacated 

The parties have settled the remaining citations and orders contained in these dockets and the 

settlement is set forth below. 

Citation/Order 

No. 

Modification to Citation Proposed 

Penalty 

Amended 

Penalty 

8415284 Modify from high to moderate negligence $2,106 $1,472 

7698694 Modify from reasonably likely to unlikely; non 

s&s $3,143 $2,200 

7698695 Modify from reasonably likely to unlikely; non 

s&s $4,329 $3,030 

8415524 Modify from high to moderate negligence $3,689 $2,582 

8415525 Modify from high to moderate negligence $6,696 $4,687 

8415287 Modify from fatal to permanently disabling; 

Modify from high to moderate negligence $15,570 $10,899 

8415528 No change $8,893 $6,669 

8415288 Modify from high to moderate negligence $3,689 $2,600 

8415531 No change $8,209 $5,746 

8415292 Modify from high to moderate negligence $19,793 $13,855 

8415293 Modify from high to moderate negligence $10,437 $7,305 

8415294 No change $117 $100 

8415534 Modify from reasonably likely to unlikely; non 

s&s $5,503 $3,852 

8415536 Modify to 3 people affected $5,503 $3,852 

6681977 No change $1,412 $989 

33 FMSHRC Page 1635
6681980 No change $1,412 $989 

6681398 No change $1,412 $989 

6681399 Modify from high to moderate negligence $11,306 $7,914 

6681981 Modify from lost workdays to no lost 

workdays; Modify from moderate negligence 

to low negligence 

$873.00 $611 

8017943 Modify from high to moderate negligence $8,893 $6,225 

6681984 No change $1,203 $842 

6681400 No change $807 $565 

8415319 Modify from fatal to no lost workdays $634 $444 

6681985 Modify from fatal to no lost workdays $2,473 $1,731 

8514320 Modify from reasonably likely to unlikely; non 

s&s $1,795 $1,257 

8417945 Modify from reasonably likely to unlikely; non 

s&s $2,473 $1,731 

8415706 No change $5,961 $4,172 

8415707 No change $585 $410 

Total: $138,916 $97,718 

As to the proposed settlement, I have considered the representations and documentation 

submitted, and I find that the modifications are reasonable and I conclude that the proposed 

settlement is appropriate under the criteria set forth in section 110(I) of the Act. The motion to 

approve settlement is GRANTED. 

III. ORDER 

Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess the 

penalties listed above for a total penalty of $10,000 for the citations decided after hearing and a 

total of $97,718.00 for the citations that were settled. Black Beauty Coal Company is hereby 

ORDERED to pay the Secretary of Labor the sum of $107,718.00 within 30 days of the date of 

this decision. 

_ /s/ Margaret A. Miller____________ 

Margaret A. Miller 

Administrative Law Judge 

33 FMSHRC Page 1636
Distribution: (First Class U.S. Mail) 

Nadia Hafeez, Natalie Lien Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202 

R. Henry Moore, Jackson Kelly, PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue, 

Pittsburg, PA 15222 

33 FMSHRC Page 1637
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

July 13, 2011 

SECRETARY OF LABOR, MSHA, : TEMPORARY REINSTATEMENT

 on behalf of THURMAN WAYNE : PROCEEDING

 PRUITT, : 

Complainant : 

: 

Docket No. KENT 2011-1152-D

MADI-CD-2011-08 

v. :

 :

 : 

GRAND EAGLE MINING, INC.,

Respondent 

: 

: 

Grand Eagle Prep Plant

Mine ID 15-19011 

DECISION AND ORDER GRANTING APPLICATION FOR 

TEMPORARY REINSTATEMENT 

Appearances: Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Secretary;

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, Kentucky, on behalf 

of the Respondent. 

Before: Judge Melick 

This case is before me pursuant to Section 105 (c)(2) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq., the (“Act”). Grand Eagle Mining Inc., (“Grand Eagle”) has 

requested a hearing on the Secretary’s application for temporary reinstatement of Thurman Pruitt 

filed June 8, 2011, pursuant to Commission Rule 45, 29 C.F.R. § 2700.45. Expedited hearings were 

thereafter held in Henderson, Kentucky. 

Commission Rule 45(d), 29 C.F.R. § 2700.45(d) limits the scope of these proceedings as 

follows: 

The scope of a hearing on an application for temporary reinstatement is limited to a 

determination as to whether the miner’s complaint was frivolously brought. The 

burden of proof shall be upon the Secretary to establish that the complaint was not 

frivolously brought. In support of his application for temporary reinstatement, the 

Secretary may limit his presentation to the testimony of the complainant. The 

respondent shall have an opportunity to cross-examine any witnesses called by the 

Secretary and may present testimony and documentary evidence in support of its 

position that the complaint was frivolously brought. 

33 FMSHRC Page 1638
 

The Commission has further held that it is “not the judge’s duty . . . to resolve . . . conflict[s] 

in testimony at this preliminary stage of proceedings.” Secretary of Labor on behalf of Albu v. 

Chicopee Coal Co., Inc., 21 FMSHRC 717, 719 (July 1999). At a temporary reinstatement hearing 

the judge must determine whether the evidence mustered by the miner to date establishes that his 

complaint is nonfrivolous, not whether there is sufficient evidence of discrimination to justify 

permanent reinstatement. Jim Walter Resources Inc. 920 F.2d 738 at 744 (11th Cir. 1990). The 

Circuit Court further stated that the “not frivolously brought” standard is indistinguishable from the 

“reasonable cause to believe” standard under the whistleblower provisions of the Surface 

Transportation Assistance Act. In addition, it is equated with a criteria of “not insubstantial or 

frivolous” and “not clearly without merit.” Jim Walter Resources Inc., 920 F.2d at 745. 

In a “Summary of Discrimination Action” form (MSHA Form 2000-124) signed by Mr. 

Pruitt on April 11, 2011, it is stated as follows: 

Mr. Pruitt feels that he was unfairly treated from an [sic] similar incident that had 

previously happened to another worker who only got 3 days off and not terminated. 

He feels that he was terminated because he had turned in a safety issue in the past. 

He is requesting back pay, overtime, benefits, electrical class he was participating 

in and have his record cleared. 

Complaint of Diesel Fuel Spill 

Complainant, Wayne Pruitt, testified that he began working for Grand Eagle on August 18 

or August 19, 2008 as a service mechanic. He testified that upon arrival at the mine for his 2 p.m. 

shift on August 5, 2009 he was told that around noon that day someone had spilled diesel fuel. He 

estimated that “at least” 3,000 gallons had spilled and that some had run into his work area. The 

area smelled of diesel fuel and the vapors, enhanced by the heat that day, made him nauseous. The 

events that followed were described in the following colloquy at hearings: 

Q [By Ms. Thomas] Okay. Let me ask you this. What did Mr. Ferris [Pruitt’s 

foreman] do in response to or, if anything, in response to your questions about the 

diesel fuel spill? 

A [Mr. Pruitt] Oh, his reply was that they put sand down over my work area. 

Q Did you go to the work area? 

A Yes. 

Q And did you see sand? 

A Very little. 

Tr. 16 L 4- L 12 

33 FMSHRC Page 1639
 

****
 Q. [Ms. Thomas] Hold on just a second. Did the sand have any effect that you could
 

appreciate --

A No.
 

Q -- in terms of the spill?
 

A None at all. None at all.
 

Q Okay. And did you tell Mr. Ferris that?
 

A Yes.
 

Q And what did he say in response?
 

A His -- I asked him if there was something else that they were going to do and he --

THE COURT: What did you talk to Mr. Ferris about?
 

THE WITNESS: This was at 2 o'clock, when I walked over and observed my work
 

area, then I went back and talked to Mr. Ferris.
 

THE COURT: And what did you say to Mr. Ferris?
 

THE WITNESS: I asked him what they were going to do to clean that area up, and
 

his reply was, I'll find out. So I did try to go back to work in my work area, and I was
 

over there for about an hour and I was getting sick, and I went back to Mr. Ferris
 

again and I told him that something has to be done because it's making me sick to try
 

to work in this area.
 

Q (MS. BOOTH THOMAS CONTINUING) And is this the third time that you asked
 

Mr. Ferris about the diesel spill?
 

A Yes.
 

Q And what did he say this third time to you?
 

A He told me that they were going to put gravel down in that area.
 

Q And what did you say in response to Mr. Ferris?
 

A I said -- I said, Jerry, this gravel is not going to seal these fumes that's already
 

soaked through deep into the ground. I said the sun is pulling these vapors up and I
 

said I cannot work in these conditions and I can't -- you know, I can't for the life of
 

me understand why this company wants to put somebody through those kind of
 

conditions.
 

Q What did Mr. Ferris say to you? 

A He told me again that he would go find out to see what they would do to clean that 

up

 Tr. 16 L 22-Tr. 18 L 13 

 
 

33 FMSHRC Page 1640
 

 

THE COURT: What did you say to Mr. Ferris at this point, if they're not going to clean it up?
 

THE WITNESS: Yeah. I told him if they're not going to clean it up, I said, there's --

there are means that I can use to get this spill cleaned up and he said, what do you
 

mean by that?
 

Q (MS. BOOTH THOMAS CONTINUING) What did you say in response to that?
 

A I told him I could call MSHA and report a spill that they did.

 Q Did you tell -- so you told Mr. Ferris that you could call MSHA?

 A Yes.

 Tr. 19 L 15- Tr. 20 L 2 

** ** 

Q [Ms. Thomas] So after you told Mr. Ferris that you could call MSHA, what did
 

he say in response?
 

A [Mr. Pruitt] He told me to do what I have to do.
 

Q And what did you say to him?
 

A I told him I was going up by the time clock, there's a bulletin board there that has
 

the MSHA 800 number on it.

 Tr. 20 L 13-L 19 

  

Q (MS. BOOTH THOMAS CONTINUING) Okay. What did you do after you had
 

that conversation with Mr. Ferris?
 

A [Mr. Pruitt] I proceeded to the -- it's like a warehouse area with our time clock,
 

that's where our time clock is, and there's a bulletin board on the wall. I proceeded
 

up there, and I called the 800 MSHA hotline number and reported a spill that the
 

company did not report themselves.
 

Q Okay. Okay. And where was Mr. Ferris during your telephone conversation with
 

MSHA?
 

A While I was on the phone I had no idea where he was at.
 

Q Did you see him soon after you hung up?
 

A Yes. Yes.
 

Q Where was he?
 

A He was right outside the walk door, just a few feet from where I was on the phone,
 

but he was standing outside the door as to where I couldn't see him.
 

Q Was the door open?
 

A Yes.
 

Q What did you say to Mr. Ferris when you saw him standing outside a few feet
 

away from where you had the telephone call?
 

33 FMSHRC Page 1641
A Well, when I finished my phone call, when I walked through that doorway, he 

startled me because he was right there on the other side of the door. I didn't -- I didn't 

know he was there. 

Q What did you say to him? 

A I didn't say anything. He said the first word, he told me hold up, Wayne, and I said, 

yeah, Jerry. He said, did you make your phone call? I said, yes, I did. And he said, 

well, he said, just hang on right here. He said Mr. Rick Lam, which is the mine 

superintendent, he said Mr. Rick Lam is on his way over to see you. He wants to 

have a talk with you. 

Q When did Mr. Lam -- did Mr. Lam show up? 

A Yes, but when Jerry said that, my reply to Jerry was, am I going to get fired over 

this? And he said, "I don't know, Old Buck." That was his exact words. He said, we'll 

find out when Mr. Lam gets here. 

Q Okay. When did Mr. Lam arrive after that conversation? 

A Maybe three to four minutes. 

Q Did you know if Mr. Ferris called Mr. Lam? 

A I don't know. You know, he had to, to have talked to him, because Mr. Lam had 

already known that I had called MSHA. 

Q Okay. And what was the first thing Mr. Lam did when he approached you? 

A Well, as Mr. Lam entered the parking lot, he was traveling at a pretty accelerated 

rate of speed, and he come sliding in that parking lot in his truck, you know, locked 

the brakes up and jumps out like he's ready to fight, you know -- and, you know, I 

was kind of startled, somebody coming at me. You know, he is rushing towards me 

and he wanted to know what the hell is going on. 

Q And was he directing that to you? 

A I assumed that, but I wasn't sure. I didn't make any comment to that statement. And 

then he said -- he looked at me and asked me directly, Wayne, what's going on here? 

Q What did you say in response? 

A I told him that they had a diesel fuel spill that they weren't going to clean up, they 

expected me to work in that, and he interrupted me and he said I run this mine, you 

know, I'm in charge here, I say what goes here, what goes there, you know. He tried 

to put fear into me that -- that I done something. 

THE COURT: Wait a second now. Again, I don't want to know your feelings. I want 

to know what he said. 

THE WITNESS: Okay. 

Q The judge wants to know what was said to you. Do you recall what Mr. Lam told 

you when you responded to him about the diesel fuel? 

A He told me he would not tolerate anyone turning them in for a violation like 

they're going to get over this, and then he says that -- after he said that statement he 

directly backed up and said why didn't you call me first. 

Q When he was saying this to you, what was -- was his voice elevated? 

A Yes, it was elevated. 

33 FMSHRC Page 1642
Q Was he standing directly in front of you?
 

A Right in my face.
 

Q Okay. How far away from you?
 

A This far, (indicating).
 

Q And for the Court, we got to kind of give -- for the record we got to give some
 

distance.
 

A About one foot. Twelve inches, one foot, yeah.
 

Q And you said he backed up. What did he say when he backed up?
 

A When he backed away, he asked me why I did not call him first, to give him the
 

first opportunity to make that situation good before I reported it to MSHA.
 

Q And what did you say in response?
 

A I told him that this was six hours into my shift, every hour I asked to get something
 

done to resolve that issue in my work area. I told him I was not satisfied at all with
 

the working conditions that they were putting me through working in those diesel
 

fuel fumes, and he let me know that if I would have called him and contacted him
 

that he would have told me that he had already called an emergency spill company
 

to come and clean all of that up.
 

Q And was that the end of the conversation you had with Mr. Lam?
 

A Yeah. There was more words to it than that, but I don't exactly remember. There
 

was still some more conversation and he let me know that that area would be cleaned
 

up.
 

Q Okay. Did he say anything to you in a hostile tone, in a high tone, in a yelling
 

tone?
 

A Yeah. When he first got there he was yelling, he was letting me know that that was
 

his mine, he run the mine, he calls all the shots, and it was like he was directing
 

towards me that I interfered with his operation and that he wouldn't stand for
 

somebody working like that for him, under him, for him.
 

Q Was Mr. Ferris standing there --

A Yes, ma'am.
 

Q -- within earshot of the conversation?
 

A Yes, ma'am.
 

Q As a result, did MSHA actually come out to the mine?
 

A Yes, ma'am.
 

Q And did they do an investigation, as far as you know?
 

A As far as I know they did, yeah. They came over and inspected the area where the
 

spill happened and they could see where it got into this drainage ditch and --

Q Okay. But they came in --

A Yeah.
 

Q -- and did an inspection?
 

A Yeah.
 

33 FMSHRC Page 1643
Q Did the EPA, the Environmental Protection Agency, did they come out to the mine 

as well? 

A Yes, ma'am. They showed up the very next day. There was several involved with 

those.

 Tr. 21 L 14- Tr. 27 L 2 

** ** 

Q (MS. BOOTH THOMAS CONTINUING) Well, did the EPA actually come in?
 

A ( Mr. Pruitt) They didn't until I notified them. MSHA -- MSHA came out --

 THE COURT: I'm sorry. You notified EPA?
 

THE WITNESS: Yes, sir.
 

THE COURT: Oh, all right. And when did you do that?
 

Q (MS. BOOTH THOMAS CONTINUING) Yeah, when did you do that?
 

A That -- let's see. The night that it happened, excuse me, I came in the following
 

day and I didn't see much that MSHA, I didn't see or hear that MSHA assessed a
 

penalty or a fine or MSHA had done, I didn't see anything MSHA done, nothing.

 Tr. 28 L 23- Tr. 29 L 12 

  

Q [Ms. Booth] Did you have any other interactions with the EPA while you were at 

work when they were there? 

A [Mr. Pruitt] Well, I take that back. There was -- I did call that number, they have 

a hotline number, and I had to give them my case number or the number they gave 

me when I made the initial call, and they did tell me there was an investigation going 

on, and that's about all they could tell me at that time, but after the fact, you know, 

I could see what took place, what happened, that they did take action and that the 

material that they hauled to the gob dump was removed, and it cost them several 

thousands of dollars.

 Tr. 31 L 10 - L 21 

** ** 

Q (MS. BOOTH THOMAS CONTINUING) Did Mr. Donahue [then Plant Manager] 

speak with you -- what was your first interaction with Mr. Donahue after the spill? 

A There was not any immediate contact with each other until about two weeks after 

the spill. 

Q And what happened? How were you contacted? 

A Ed Donahue called me into his office and --

33 FMSHRC Page 1644
THE COURT: When was that that he called you?
 

THE WITNESS: This was about two weeks after the spill.
 

Q Was it during your shift?
 

A Yes. During my -- at the beginning of my shift.
 

Q Did he come and get you? Where were you?
 

A Yes. I was -- we have a pre-shift meeting where the man comes out. Like I said,
 

I start work at 2 o'clock. Usually ten minutes until 2:00 the foreman will start telling
 

everybody where to go, directing people, you're on this and you're on that.
 

Q Okay. And did Mr. Donahue come to you during that time?
 

A Yes, ma'am. Well, it was after -- after we disbursed to go relieve the day shift
 

operators, that's when Mr. Donahue, he was out there at that time and he called me
 

away from everybody, Wayne, I need to see you in my office.
 

Q Okay. And was anybody with you? Did anybody go with you?
 

A No, ma'am. I was by myself.
 

Q Okay. And what happened in the office? What did Mr. Donahue say to you when
 

you first got into the office?
 

A Okay. Well, the office is a small mobile home trailer. There's only like three --

three offices. There's a plant manager, the secretaries, and the foremen all share one
 

office. It's a small, little mobile home unit. And as I went into Ed's office at the end
 

of the trailer he left the door open and when I -- he told me to have a seat. So I sat
 

down, and he just looked me point blank in the eye and said -- said, Mr. Pruitt, he
 

said in the future he said if you ever call MSHA and report this company for a
 

violation again you will suffer the consequences.
 

Q And what did you say in response?
 

A My reply was instantly, Ed, you can't speak to me that way. You can't do that.
 

Q What did he say to you?
 

A He told me he could speak to me any way that he chose and as he was getting up
 

out of his chair and walking around his desk towards me he again told me, I'm
 

celling you, looked me right in my eye and he said, I'm telling you, he said, if you
 

turn this company in again to MSHA for any reason you will, he exaggerated,
 

(indicating), you will suffer the consequences.
 

Q And where were you when he said that?
 

A I was sitting in a chair in front of his desk.
 

Q And where was he?
 

A He was walking around his desk.
 

Q And how far was he away from you when he started pointing and saying you will
 

suffer the consequences?
 

A Four feet.
 

Q Okay.
 

A Four to five feet.
 

Q Did he use any vulgar language towards you?
 

33 FMSHRC Page 1645
--

A Yeah. 

Q What did he say? 

A At that time he was approaching me, and he reached onto his side and grabbed his 

cell phone, and he slams his cell phone down on that desk corner right there in front 

of me. I mean, slammed it down hard, (indicating). And he said there's a telephone, 

he said, I dare you to call fucking MSHA. That was his term right there. 

Q And what did you say in response? 

A I was nervous, and I told him again, I said, Ed, I'm not listening to this type of talk 

from you. I don't have to. I said if you're going to -- I said if you have anything else 

to say to me, I said, I want a witness. And he told -- he hollered for Jayma. She is his 

Q Who is Jayma?
 

A -- secretary. Jayma Jackson is his secretary. Her office is right around from his,
 

there's a little bathroom area and then there's her office. There's no doors on her
 

office, and she could hear every word that we were saying.
 

Q Well, she was within earshot?
 

A Yes, ma'am. Yes, ma'am. Definitely. Well, he called for her.
 

Q Did she come?
 

A And I said no. Just as soon as he hollered for her, I said no. I said she is a salaried
 

personnel. I said I want a witness with me right now if you're going to talk to me in
 

this tone of voice, I said I want someone hourly. She did not come in there.
 

Q Okay.

 A So I knew she could hear, because he --

Q Well, let's talk about --

A Okay.
 

Q -- what happened after you said you wanted an hourly person. What did he say?
 

A Well, he slammed -- he picked his phone up and, like I said, tried to get as close
 

to me as he could on the edge of that desk and pointing at it, I dare you, I dare you,
 

you want me to dial the damn number for you? I dare you to call MSHA and tell
 

them how I'm talking to you right now. I got up. I had to squeeze between him and
 

the chair I was in to walk out the door. I said I'm through with this conversation, Ed
 

Donahue. If you've got anything else to say about this matter with me I'll be right
 

back with one of my employees, one of the hourly guys as a witness, because I'm not
 

listening to this type of conversation from you.
 

Q Did you have any more conversations with Mr. Donahue about the diesel spill? 

A No, nothing. That was done.

 Tr. 34 L 25 - Tr. 39 L 18 

This testimony was not disputed at hearings and clearly evidences that Mr. Pruitt engaged 

in protected activity and that mine management showed animus toward Pruitt’s protected 

activity. 

33 FMSHRC Page 1646
Report of Low Power on Loader 

Pruitt testified that in May or June 2010, he changed jobs and became a loader operator. 

Sometime during September 2010 he was operating the No. 731 loader which did not have “full 

power.” The events that followed were described by Pruitt at hearings in the following colloquy: 

[Mr. Pruitt] The 731 loader had power issues. It wasn't up to full power that it
 

could function properly.
 

Q And how long had you been operating it where it wasn't up to full power?
 

A It was a couple of weeks that all three of us loader operators were running this
 

particular loader. We have a pre-shift safety checklist that we check off and we
 

write remarks on there as to any problems that you could be having with that
 

equipment, and we were all writing low power, you know.
 

Q All three shifts?
 

A Yes, ma'am.
 

Q All three operators --

A Yes.
 

Q -- wrote low power on their pre-shift?
 

A Yes, ma'am.
 

Q And on that day what happened? Can you tell the Court what happened with
 

your work refusal?
 

A Okay. I was on second shift. It was sometime towards the middle of my shift. I
 

was taking a bucket of breaker rock, it comes out of the breaker, back up to the
 

hill to work the stockpile. As I was climbing the incline of the hill before I crested
 

the top I was just barely -- barely moving, just barely able to proceed up the hill
 

and then the loader just stalled out and died. And when it died I slammed on the
 

brakes. The brakes held the equipment. They're a hydraulic brake system.
 

Q Okay.
 

A And there's an accumulator on those loaders to give you just a little bit of power
 

when the motor is not running. You only have two or three times you can push that
 

brake pedal before there's no brakes at all.
 

Q And did you call anyone about the loader at that point?
 

A Yes, ma'am. I contacted my immediate foreman, Rob Edwards.
 

Q Okay. Now, I want to be clear so the Court can understand. At this point Jerry
 

Ferris is not your immediate foreman; is that right?
 

A Right. Jerry Ferris had left and now Rob Edwards was my immediate foreman.
 

THE COURT: Well, now, left the company?
 

THE WITNESS: Well, he still worked for the company. He is at a different location.
 

THE COURT: Different mine site?
 

33 FMSHRC Page 1647
THE WITNESS: Different site.
 

Q (MS. BOOTH THOMAS CONTINUING) And did you tell Mr. Edwards about the
 

problem with the loader?
 

A Yes, ma'am. I told Rob.
 

Q What did you say to him?
 

A We have a two-way FM radio, company radio, as we refer to it. I contacted Rob
 

on the company radio and told him my situation, the loader stalled out on me on the
 

hill, it's frightening me, scaring me, and that I was going to park the loader and tag
 

it out, it was unsafe.
 

Q And what did Mr. Edwards say to you?
 

A He told me there was nothing wrong with that loader.
 

Q And what did you say to him in response?
 

A I told him, yes, there is, it just stalled out on me, there's no power.
 

Q What did he do in response to that?
 

A I told him that I was going to park that loader, I was going to put a tag on it, do not
 

operate, and there were two additional loaders parked over there not in use, I was
 

going to get one of the other loaders and go back and perform my job.
 

THE COURT: Is that what you told him, that you were getting another loader?
 

THE WITNESS: Yeah, because the one I was on was unsafe, I was refusing to
 

operate that equipment.
 

THE COURT: How did you get it to the parking position if it had stalled out on you?
 

THE WITNESS: I had a load on the bucket when it stalled out and I was up on the
 

hill. From the point I was at to once I climbed the hill and dumped that load, it's
 

downhill all of the way.
 

THE COURT: Well, where did it stall out?
 

THE WITNESS: It stalled out going up the hill.
 

THE COURT: With a load?
 

THE WITNESS: With a load.
 

THE COURT: So you dumped the load at that point?
 

THE WITNESS: Yes.
 

THE COURT: And you were able to operate it at that point?
 

THE WITNESS: Yes. Yeah, it was low power It would function okay without a load,
 

and the whole 2 route I had after dumping that bucket was downhill.
 

Q (MS. BOOTH THOMAS CONTINUING) And that was without a load?
 

A That was without a load, correct.
 

Q So your concerns were going up the hill with a load?
 

A Yes, ma'am.
 

Q Okay. And what did Mr. Edwards say to you when you told him that you were
 

going to tag this equipment out?
 

33 FMSHRC Page 1648
A He told me that he had called Tim Ball, the safety director, and explained the
 

situation at hand with him. They have a policy of, you know, if – 

Q And when you say "they," you mean the operator?
 

A No. The company tells us that -- I've not seen a written policy, but I guess it's a
 

verbal policy. They've told us that if you deem something unsafe that if your foreman
 

thinks it is safe that they will get a second opinion. Okay. The second opinion was
 

a phone call to Tim Ball relating to him the issue. My foreman never came and
 

looked at that loader. Tim Ball never came.
 

THE COURT: What was his position?
 

THE WITNESS: Tim Ball is the safety director.
 

THE COURT: Safety director?
 

THE WITNESS: Yeah.
 

THE COURT: All right.
 

Q (MS. BOOTH THOMAS CONTINUING) Did Mr. Ball come and look at the
 

loader?
 

A No, ma'am. No, ma'am. He -- Mr. Rob Edwards conferred with Tim Ball over the
 

telephone, because that's the statement Rob had made to me, I called Tim Ball, Tim
 

Ball said it's safe to run, he agreed with me, it's safe to run, you run that equipment.
 

Q And did you run the equipment?
 

A No, ma'am. No.
 

Q What did you do?
 

A I parked the loader, I put a tag on it, do not operate, and I got on another loader.
 

Q Did you complete your job that day?
 

A Yes, ma'am.
 

Q Okay. And did you speak with Mr. Edwards and Mr. Rick Lam the following day?
 

A Yes, ma'am. At the beginning of the shift.
 

Q Okay. And what did -- how did that conversation start?
 

A It started like I said earlier, kind of the same deal, we all meet out there before
 

shift, and when we were disbursing Rick Lam was there with Rob Edwards, and Rick
 

Lam said, Wayne, I need to see you a minute. There's a small conference room right
 

there behind the time clock wall, and they walked into that conference room, Rob
 

Edwards, Rick Lam, and myself.
 

Q Okay. And what was -- what did Mr. Lam say to you?
 

A Well, as we got in and sat down in that room Rob Edwards and Rick Lam sat
 

facing -- facing me. Rob never made any comments. Rick Lam, the first question that
 

he asked me was why I was refusing to do my job.
 

Q And what did you say?
 

A I said I did not refuse to do my job, I said I deemed a piece of equipment unsafe
 

to operate and I got on another piece of equipment and done my job.
 

Q And what did he say to that?
 

33 FMSHRC Page 1649
A He got up out of his chair and walked towards me and he said I will -- he started 

pointing his finger. He said I won't tolerate a man not wanting to do his job. He said 

I run this mine, this is my mine. He said I've heard this story before from you. He 

said this is my mine. He said if a man is not doing his job he said I'll fire him on the 

spot. 

Q How far away was he standing from you when he -- when he said that? 

A Two feet. 

Q Okay. And were you sitting in a chair? 

A I was sitting down and he was pointing his finger at me, (indicating). 

Q Did you say anything in response to what he said to you? 

A I was confused. I said wait a minute, I turned a piece of equipment in as unsafe to 

operate. You know, I have that right to do that, and you're wanting to turn this 

around, Mr. Lam, and directing me that I refused to do my job. And he said you did 

refuse to do your job. When your foreman puts you on, assigns you a piece of 

equipment and you refuse to run that equipment, he said you refuse to do your job. 

And he said, like I told you, I won't tolerate that, I will fire a man for not -- for 

refusing to do his job. And he was in a loud tone of voice. 

Q Okay. Did you say anything in response to that? 

A Yeah. I kept saying, Mr. Lam, the equipment was unsafe. You know, I'm told by 

you, by the safety director, by my foreman if you think a piece of equipment is 

unsafe you park it, you tag it out. I was doing what I've been trained in my safety 

training to do. 

Q Did Mr. Lam tell you that piece of equipment was being looked at or being 

considered for repairs? What did he say? 

A At that time he said I have a Wayne Supply man on his way. 

Q Well, hold on. Wayne Supply man? 

A They're a mechanic, Caterpillar. It's a Caterpillar dealer/mechanic. He said I have 

a Caterpillar serviceman on the way and he's got a laptop computer. And after Mr. 

Lam told me that the Caterpillar man was on the way and he said you better hope 

they find something wrong with that equipment. And that was all that was said. You 

know, that was the end of the conversation. As I left the room they were out there 

getting the codes off of the -- the loader had like three injectors that wasn't working. 

It was low power. 

Q Did you see that yourself, the codes --

A Yes. 

Q -- from the --

A Well, I didn't actually see the codes on the computer. I seen the computer screen 

and I heard 

what they -- what they said, that there was three injectors not working on that loader. 

Q What does that mean? 

A Each cylinder, you know, each motor --

Q In layman's terms. Yeah. 

33 FMSHRC Page 1650
 

 

A A motor has so many pistons. On a diesel motor each piston has a fuel injector 

that sends fuel specifically for that cylinder. There was three cylinders that were not 

getting any diesel fuel, and that's like you took three pistons away from that engine. 

And I never heard an apology from them, I never heard them say, yeah, you were 

right, Wayne, you know, thanks for being safe. You know, I never heard nothing like 

that. I never heard another comment. I was just thankful that they did find something 

and Mr. Lam didn't fire me.

 Tr. 42 L 11- Tr. 51 L 14 

This testimony was not disputed at hearings and clearly establishes that Mr. Pruitt engaged 

in protected activity and that both his then-foreman Rob Edwards, and Operations Manager Rick 

Lam, showed animus toward this protected activity. 

Report of Gob Truck With Two Lights Out 

Pruitt testified that sometime during the month of February or March 2011, he reported to 

safety Director Tim Ball that two lights were out on the gob truck. Following this report, Ball 

reportedly “made them park the truck until it was fixed.” The following day Edwards told Pruitt that 

he had gotten in trouble “royally” over the issue. There is no evidence that Edwards knew that Pruitt 

had reported the condition to Ball. In any event, it is clear that Pruitt engaged in protected activity 

by reporting the condition to Ball. Pruitt was subsequently discharged by Grand Eagle on March 31, 

2011. A letter informing him of his discharge dated April 1, 2011 reads as follows: 

Dear Mr. Pruitt, 

This letter is to inform you that your employment with Grand Eagle Prep Plant 

has been terminated, effective 3/31/2011. This action was taken due to a history 

of unsafe work activity. On January 14, 2011, you were suspended for three days 

due to unsafe work acts. On March 31, 2011, you were again observed engaging 

in unsafe work acts and subsequently suspended. 

For this reason, we have no choice but to discharge you immediately. You will be 

notified in a separate letter from the Human Resources Department of your 

COBRA rights and eligibility. 

Sincerely, 

Richard Lam 

Operations Manager 

Pruitt acknowledged that in January 2011 he had backed a 988 Caterpillar loader into the tail 

roller of the stacker and received a three-day suspension for that accident. The testimony of current 

33 FMSHRC Page 1651
Plant Manager Dwight Son that the resulting repairs cost $30,000 is not disputed. Pruitt also 

acknowledges that on March 31, 2011 he was violating company safety rules by working on one of 

the belts without locking and tagging it out. He further acknowledges that he was also then violating 

company policy by working on the belt some 20 feet above the ground without fall protection. It is 

not disputed that Mr. Son was told by an MSHA official that Pruitt’s failure to lock and tag out the 

belt before working on it and his failure to wear fall protection would have resulted in a “section 

104(d)” closure order. 

Pruitt claims however that his discharge was the result of disparate treatment in that other 

miners at this facility had similar incidents and were not discharged. In this regard he cited incidents 

by miners Randy Toms, Carroll Simmons, Shane Stone and Michael Crick. While the Complainant 

would have the burden at hearings on the merits to prove disparate treatment, his representations 

under oath of such treatment may be considered in determining that the complaint herein was not 

frivolously brought, the standard applicable in these proceedings. 

In concluding that Pruitt’s complaint herein was not frivolously brought, I give significant 

weight to the evidence, undisputed at hearings, that Pruitt engaged in a number of protected 

activities, that Respondent showed animus toward several of those activities and that there was a 

close connection in time, about one month or less, between his last alleged protected activity and 

his March 31, 2011 discharge. 

While Respondent appears to assert that its discharge of Pruitt was based on his unprotected 

activities and may at hearings on the merits prove that assertion (the person who could provide the 

best evidence in this regard i.e. the person who actually discharged Mr. Pruitt, did not testify )and 

I find that Respondent’s evidence at these hearings is not sufficient to demonstrate that Pruitt’s 

complaint herein was frivolously brought. 

ORDER 

Based on the above findings, the Secretary’s Application for Temporary Reinstatement is 

granted. Accordingly, Grand Eagle Mining Inc., is directed to immediately reinstate Wayne Pruitt 

to the same or equivalent job at the Grand Eagle Prep Plant at the same rate of pay and with the same 

benefits he had at the time of his discharge on March 31, 2011

 _ /s/ Gary Melick____________

 Gary Melick

 Administrative Law Judge

 (202) 434-9977 

33 FMSHRC Page 1652
Distribution:(By Certified Mail, and Email) 

Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church 

Street, Suite 230, Nashville, TN 37219 

Thurman Wayne Pruitt, 2611 North Elm, Henderson, KY 42420 

Jeffrey Phillips, Esq., Steptoe & Johnson, 1010 Monarch Street, Suite 250, P.O. Box 910810, 

Lexington, KY 40591-0810 

/to 

33 FMSHRC Page 1653
 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 

FACSIMILE: 412-928-8689 

July 21, 2011 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

: 

: 

: 

: 

(Judge Lewis) 

Docket No. SE 2010-566 

A.C. No. 40-02545-210961 

 v. :

 :

 CARMEUSE LIME & STONE, 

Respondent, 

: 

: Mine Name: Lime Plant 

DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 

on behalf of the Secretary of Labor; 

R. Henry Moore, Esq., Jackson Kelly PLLC, on behalf of Carmeuse Lime 

and Stone. 

Before: Judge John Kent Lewis 

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 Respondent, Carmeuse Lime and Stone, Inc., (“Respondent”), at its lime plant pursuant 

to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815 and 

820 (“Mine Act” or “Act”). The case originally involved one docket with twelve (12) violations, 

and an assessed a total penalty of $16,670.00. Prior to the hearing, the parties filed a motion to 

approve a partial settlement of six of the citations for a penalty of $1,339.00. 

This court has reviewed the documentation and representations submitted as to the 

aforementioned six citations.1

 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. Accordingly, an order approving the partial 

settlement and directing payment of those penalties is incorporated into this decision. 

1

 The following Citations are addressed pursuant to the settlement agreement: 6596509; 

6596510; 6596513; 6596514; 6596519; 6596529. 

33 FMSHRC Page 1654
 

 

 

As to the remaining six (6) citations, the parties presented testimony and documentary 

evidence at the hearing held on April 28, 2011 in Knoxville, Tennessee. The parties filed posthearing briefs. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Carmeuse Lime and Stone operates the Luttrell Lime Plant in Union County, Tennessee. 

The Luttrell operation mines limestone from underground and surface mines. The Plant 

produces lime, hydrate, limestone, and aggregate products for sale into the environmental, 

chemical, metallurgical, construction, building materials, agricultural, and consumer product 

markets. See, inter alia, Wolfenbarger Affidavit, Respondent Exhibit (Res. Ex.) 1, at 1. 

The parties have stipulated, inter alia, that the operator is medium in size, that its mine’s 

operations affect interstate commerce, that it is subject to the jurisdiction of the Mine Act and 

that the proposed penalty will not affect the operator’s ability to proceed in business. See Joint 

Motion to Approve Partial Settlement. See also stipulations at Government Exhibit (Gov. Ex.) 1. 

At hearing the parties also stipulated as to Respondent’s violation history as set forth at 

Gov. Ex. 27 based upon the Secretary confirming that “0” on said “assessed violation history 

report” meant a vacated citation. See Hearing Transcript (Tr.) 20. The Secretary confirmed this 

interpretation by letter, dated May 10, 2011. 

A. Citation No. 6596503 

On January 5, 2010, Inspector Joe Norwood issued Citation No. 6596503 to Carmeuse 

Lime and Stone for a violation of 30 C.F.R. §56.12034. The citation alleged: 

The 208 volt light attached to and about 20 inches above the handrail. Located on 

the 113 head pulley platform was not guarded to protect miners from accidental 

contact. Possible contact with the light result in electrical shock, burns, and/or 

cuts. 

Gov. Ex. 2. 

The inspector found that an injury was unlikely to occur, that an injury could reasonably 

be expected to be fatal, and that the negligence was high. See Gov. Ex. 2. Although inspector 

Norwood had originally indicated in his citation that the violation was not significant and 

substantial, he averred in his pre-hearing affidavit that it was significant and substantial (“S&S). 

Norwood Aff. Gov. Ex. 2A, at 7. At the hearing Norwood testified that, upon further reflection, 

he was of the opinion that the violation was not significant and substantial.2 Compare Norwood 

Aff. Gov. Ex. 2A, at 7, with Tr. 18, and Gov. Ex. 2. The Secretary accordingly agreed not to 

2

 In its pre-hearing Order, this court, over objections of the Secretary and Respondent, 

requested that the parties submit all direct examinations of each witness in writing in the form of 

an affidavit. 

33 FMSHRC Page 1655
 

 

 

pursue such as an S&S3 designation. See Tr. 17. 

The standard for citation 6596503, 30 C.F.R §56.12034, Guarding Around Lights, reads, 

“Portable extension lights, and other lights that by their location present a shock or burn hazard, 

shall be guarded.” 30 C.F.R §56.12034 (2010). 

At hearing, Inspector Norwood testified that the unguarded light was a mercury light, 

which was alongside a metal walkway. It was located on the corner where a miner would go up 

and down the steps. Norwood Aff. Gov. Ex. 2A, at 6. The area where the light was located was 

traveled heavily, as it went to the head pulley. Id. Donnie Wolfenbarger, Respondent’s plant 

manager, had advised Norwood that one miner would use the walkway at least once per shift. Id. 

The line plant operated two shifts per day, five days per week, beginning at approximately 6:00 

A.M. and lasting until 10:00 P.M. or 11:00 P.M. Norwood Aff. Gov. Ex. 2A, at 6; Tr. 26. 

Norwood opined that, given the icy and wet weather conditions, a miner could easily slip 

and then stumble into the light, subjecting him to a shock or burn hazard. A person hitting the 

light could break the bulb and be exposed to the full 208 voltage, resulting in possible 

electrocution and death. Norwood Aff. Gov. Ex. 2A, at 7; Tr. 32. 

At hearing Mr. Wolfenbarger disagreed that the unguarded light constituted a hazard in 

that the light was pointed toward stone piles away from the walkway where persons would 

travel. Tr. 46. Anyone stumbling into the light would be exposed to the back of the light, not to 

the bulb. Wolfenbarger further denied that there was any work order pertaining to the light in 

question. Wolfenbarger Aff. Res. Ex. 1, at 7; Tr. 47. 

ANALYSIS 

The record clearly establishes that the location of the unguarded light in question was a 

violation of §56.12034 in that a shock, burn or cut hazard existed. Given the location of the light 

on a walkway and the poor weather conditions, there was a risk that a miner could come into 

contact with the light and be exposed to a fatal shock. See inter alia Gov Ex. 3. The ALJ 

accepts the testimony of Inspector Norwood and the Secretary’s argument that a shock hazard, 

however remote, was existent and could reasonably be expected to result in death. Tr. 18; See 

also Secretary’s (Sec’y’s) Post-Trial (PT) Brief (Br.) 4-5. 

. 

I find, given the totality of the circumstances, including that the light was pointing away 

from any approaching miner, that it was “unlikely” that any injury could occur. Indeed, the 

Secretary conceded such. See Tr. 17. 

The Secretary’s position was that the negligence associated with the violation was high, 

but I find that the negligence is moderate. I resolve the conflict in the record as to how long the 

3

 “Significant and substantial” is a term included in section 104(d)(10) of the Act, which 

distinguishes as more serious any violation that “could significantly and substantially contribute 

to the cause and effect of a ...mine safety or health hazard.” (30 U.S.C. §814(d)(1)). 

33 FMSHRC Page 1656
 

 

hazardous condition existed and when Respondent had notice of such in favor of Respondent. 

Compare Tr. 39 (Inspector Norwood claims Mr. Wolfenbarger told him there was a work order 

placed during a plant shut down that occurred between December 18, 2009 to January 4, 2010), 

with Tr. 44 (Wolfenbarger denies memory or record of work order before January 5, 2010). 

Furthermore, Respondent had abated the violation within the time frame given. Norwood Aff. 

Gov Ex. 2A, at 8; Tr. 39. Therefore, I find that the Secretary has not carried the burden of 

proving a high level of negligence on the part of Respondent.4 Accordingly, this court finds that 

Respondent’s negligence was moderate. 

Based upon the foregoing, including evaluation of the six statutory criteria set forth in 

Section 110(i) of the Act, I find that a reduced penalty of $1,000.00 is warranted for this citation. 

B. Citation No. 6596504 

On January 5, 2010, Inspector Norwood issued Citation No. 6596504 to Respondent for 

violation of a mandatory safety standard at 30 C.F.R. §56.11002. This citation reads: 

Seven sections of toe boards were removed on the top of the chat bin. The 

openings measured from about 56 inches to about 18 inches. The walkway on top 

of the bin is used each shift. Miners were observed walking and operating mobile 

equipment about 40 feet below. Miners being struck from falling material from 

this height could be seriously injured. 

Gov. Ex. 4. 

The inspector found that an injury was reasonably likely to occur, that an injury could 

reasonably be expected to be permanently disabling, and that the negligence was high. See Gov. 

Ex. 4. Inspector Norwood averred in his pre-hearing affidavit that the violation was significant 

and substantial. Norwood Aff. Gov Ex. 2A, at 13. 

The mandatory standard at §56.11002, “Handrails and toeboards” sets forth the 

following: “Crossovers, elevated walkways, elevated ramps, and stairways shall be of a 

substantial construction provided with handrails, and maintained in good condition. Where 

necessary, toe boards5

 shall be provided.” 30 C.F.R. §5611002. 

At hearing, Inspector Norwood described the area in question as an elevated walkway or 

travelway on top of the chat bin. See Gov. Ex. 5; Norwood Aff. Gov. Ex. 2A, at 11; Tr. 65. 

4

 30 CFR § 100.3, in pertinent part, defines negligence as “conduct, either by commission 

or omission, which falls below a standard of care established under the Mine Act to protect 

miners against the risks of harm.” 

5

 A toe board is a vertical barrier at floor level that is erected along exposed opening, 

such as a floor opening, platform, or runway. Toe boards prevent objects such as tools and 

materials from falling from one level to the next. 

33 FMSHRC Page 1657
 

Conversely, Mr. Wolfenbarger contended that the area in question was not a cross-over, 

walkway, ramp or stairway. Rather it was a platform not regularly traveled by individuals. 

Wolfenbarger Aff. Res. Ex. 4, at 7; Tr. 81. He did admit, however, that miners cleaned the 

platform once a week and performed maintenance on it on rare occasions. Tr. 79-80. 

When a miner cleans the platform, Mr. Wolfenbarger testified that the road below was 

barricaded to protect miners underneath from falling gravel. Tr. 75. According to Inspector 

Norwood’s testimony, however, the flagging he witnessed was not a barrier that would prevent 

miners from passing underneath. Tr. 71. 

ANALYSIS 

The Secretary has contended that this violation was significant and substantial in nature. 

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). The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety—contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

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

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

The Respondent has essentially asserted that the Secretary has failed to prove any of the 

four prongs of National Gypsum. 

At hearing sufficient evidence was provided by the Secretary to show that individuals 

walked in the area in question such that it can reasonably be found to be an “elevated walkway” 

within the meaning of §56.11002 provisions. Whether utilizing a “Chevron I or II analysis,” this 

Court finds that the Secretary has properly construed the area in question as an elevated 

walkway. The first inquiry in statutory construction is “whether Congress has directly spoken to 

the precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 

US 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is 

clear and unambiguous, effect must be given to its language. Chevron, 467 US at 842-43. 

Accord Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990) [FN4]. If, 

however, the statute is ambiguous or silent on a point in question, a second inquiry, commonly 

referred to as a “Chevron II” analysis, is required to determine whether an agency’s 

interpretation of a statute is a reasonable one. See Chevron, 467 US at 843-44; Thunder Basin, 

18 FMHSRC at 584 n.2. Deference is accorded to “an agency’s interpretation of the statute it is 

33 FMSHRC Page 1658
charged with administering when that interpretation is reasonable.” Energy West Mining Co. v. 

FMHSRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 US at 844). The agency’s 

interpretation of the statute is entitled to affirmance as long as that interpretation is one of the 

permissible interpretations the agency could have selected. Chevron, 467 US at 843; Joy 

Technologies, Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert denied, 520 US 1209 

(1997). See Tr. 65 (Wolfenbarger takes Norwood to platform on chat bin). 

This court further credits the testimony of Inspector Norwood that required toeboards 

were missing at various places in the elevated walkway. See Gov. Exhibits 7, 8, 9, 10, 11, and 

12; Norwood Aff. Gov. Ex. 2A, at 12; Tr. 63. 

Therefore, this court finds that there was an underlying violation of §56.11002. 

Further, I credit the testimony of Inspector Norwood that this citation created a discrete 

safety hazard -- that is, exposure to falling objects, including chat and maintenance tools. 

The challenge in finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

We have explained further that the third element of the Mathies formula “requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104(d)(1), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in consideration of the length of time that the violative condition 

existed prior to the citation and the time it would have existed if normal mining operations 

continued. Elk Run Coal Co., FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 

FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

There is a reasonable likelihood that missing toeboards could allow falling debris to 

strike and injure miners. Inspector Norwood stated that he had observed miners walking and 

operating mobile equipment below the travel way. Norwood Aff. Gov. Ex. 2A, at 13. This fact 

undermines Respondent’s claims that the area was only traveled on an “as needed” basis or that 

barricading was erected to prevent individuals from traveling under the area. See Tr. 76; 

Wolfenbarger Aff. Res. Ex. 4, at 8. By bringing Norwood onto the chat bin with workers 

beneath, Wolfenbarger showed that people used the top of the chat bin without barricading the 

area underneath. 

33 FMSHRC Page 1659
 

 

It is reasonably likely that a miner on top of the chat bin could kick objects onto miners 

below, causing injury. Toeboards would stop tools or gravel from falling off of the edge of the 

chat bin. I find that the violation meets the third prong of the Mathies test for S&S. 

Moreover, it is reasonable that falling chat or tools could injure a miner in a reasonably 

serious nature. Even small gravel falling 30 to 40 feet could cause severe injuries if it struck a 

miner. A falling tool striking a miner could cause a broken back, severe concussion, or other 

permanently disabling injuries. Thus, I conclude that there is a reasonable likelihood that the 

injuries caused by exposure to falling debris or tools would be of a reasonably serious nature so 

as to satisfy Mathies’ fourth prong. 

For this citation, the Secretary assessed a penalty of $2,678.00. The Commission 

outlined its authority for assessing civil penalties in Douglas R. Rushford Trucking, stating that 

“the principles governing the Commission’s authority to assess civil penalties de novo for 

violations of the Mine Act are well established.” 22 FMSHRC 598, 600 (May 2000). While the 

Secretary’s point system in 30 C.F.R., Part 100 provides a recommended penalty, the ultimate 

assessment of the penalty is solely within the purview of the Commission. Id. Thus, a 

commission judge is not bound by the penalty recommended by the Secretary. Spartan Mining 

Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo assessment of civil penalties does not 

require each of the penalty assessment criteria to be given equal weight. Thunder Basin Coal 

Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

Nevertheless, after reviewing all of the relevant facts and weighing the §110(i) factors 

applicable to such, I find no reason to depart upward or downward from the penalty amount 

arrived at by the Secretary. Accordingly the $2,678.00 penalty is warranted. 

C. Citation No. 6596506 

On January 5, 2010, Inspector Norwood issued Citation No. 6596506 to Respondent 

which averred as follows: 

Toe boards were not provided for a 44 inch walkway at the pre-heater ram 

platform. Miners were observed working about 35 feet below. Miners travel this 

area each shift. Being struck from falling material from this height could cause 

serious injury. 

Gov. Ex. 15. 

The inspector found that an injury was reasonably likely to occur, that an injury could 

reasonably be expected to be permanently disabling, and that the negligence was moderate. See 

Gov. Ex. 15. Inspector Norwood averred in his pre-hearing affidavit that the violation was 

significant and substantial. Norwood Aff. Gov Ex. 2A, at 18. 

The mandatory safety standard at §56.11002 has already been cited supra. 

At hearing, Mr. Wolfenbarger testified that the walkway in question, which led to a step 

33 FMSHRC Page 1660
 

to the platform, had a toeboard. Tr. 93. The cited toeboard or lip was a grated metal extension 

fabricated by Respondent which had approximately 1.5 inch designed height. Id.; See inter alia 

Wolfenbarger Aff. Res. Ex. 5, at 8. Although Inspector Norwood admitted that MSHA does not 

have a height requirement for toeboards, he did not feel that 1.5 inches was adequate to prevent 

miners from accidentally kicking objects off of the walkway. Tr. 84. Other sections of the 

walkway had toeboards with a height of about 4 inches. See Tr. 89. 

Miners used the walkway both to access the step to the ram platform and as a work 

platform. See Tr. 86. According to Mr. Wolfenbarger, miners traveled this area each shift. 

Norwood Aff. Gov Ex. 2A, at 17. 

Miners were working directly below this section of walkway. Inspector Norwood feared 

that they could be struck by falling objects. Tr. 85. Although Mr. Wolfenbarger did not deny 

that men were working below the walkway, he does not believe that they could be struck by 

falling objects. Tr. 91. 

ANALYSIS 

It was Respondent’s position that the 1.5 inch toe board was of sufficient height to 

prevent tools or other items from falling off of the walkway. As there was no specific height 

requirement for toe boards in §56.11002, Respondent asserted that no violation had occurred. 

See Wolfenbarger Aff. Res. Ex. 5, at 7; Tr. 94. 

I reject Respondent’s argument that the 1.5 inch lip would be of sufficient height to 

prevent chat or tools or other objects from accidentally being kicked over the side. The toe 

boards in the immediately adjoining areas were several inches higher and plainly more suited to 

preventing injury from falling objects. Although there is no set statutory standard for the height 

of toe boards, I agree with Inspector Norwood’s assessment that the lip of the grated area in 

question was clearly not of sufficient height to prevent chat or tools from accidentally being 

kicked over the top of such. 

After careful review of the record, including a consideration of factors set forth in the 

previous citation analysis, I again find that a violation of §56.11002 took place as to this subject 

area, that a discrete safety hazard – exposure to falling objects – was created. There was a 

reasonable likelihood that the hazard contributed to would result in an injury, and that there was 

a reasonable likelihood that the injury in question would be of a reasonably serious nature. Thus, 

I conclude that the citation was properly designated S&S. 

Accordingly, the assessed penalty of $807.00 is appropriate for citation 6596506. 

D. Citation No. 6596515 

On January 5, 2010, Inspector Norwood also issued Citation No. 6596515 to Respondent, 

reporting that: “The 120 volt power cord plugged into the Lincoln pull along welder had the 

outer jacket rotted and cut. The inner conductors were exposed to the sharp metal, vibration and 

33 FMSHRC Page 1661
weather.” Gov. Ex. 18. 

The inspector found that an injury was reasonably likely to occur, that an injury could 

reasonably be expected to be fatal, and that the negligence was moderate. See Gov. Ex. 18. 

Inspector Norwood averred in his pre-hearing affidavit that the violation was significant and 

substantial. Norwood Aff. Gov Ex. 2A, at 24. 

Standard 30 C.F.R §56.12004, electrical conductors, reads: “Electrical conductors shall 

be of a sufficient size and current-carrying capacity to ensure that a rise in temperature resulting 

from normal operations will not damage the insulating materials. Electrical conductors exposed 

to mechanical damage shall be protected.” 30 C.F.R §56.12004. 

At hearing, Inspector Norwood testified that although the 120 volt cord carried the same 

voltage as in a residential home, it could still provide a fatal shock. Tr. 96. At the time of the 

inspection, the cord was not in use. Moreover, Mr. Buck testified that he did not know how long 

the cord was there or when it had last been used. Tr. 106. 

Harold Hoskins, an employee of Respondent, does not believe that the inner conductor of 

the cord was damaged and, therefore, the cord was unlikely to shock any miners. Tr. 110. 

Mr. Hoskins and Inspector Norwood disagree as to whether a 20 amp breaker providing 

overcurrent protection would protect a miner from receiving a shock from the cord. Hoskins 

suggested that it would, while Norwood was adamant that it would do nothing to protect a miner 

from a fatal injury. Compare Tr. 109 (Hoskins), with Tr. 118 (Norwood). 

ANALYSIS 

Respondent does not contest the violation of the mandatory safety standard at §56.12004. 

Respondent, however, does contest the designation of the violation as S&S. 

The condition of the inner circuits of the cord is immaterial because the discrete safety 

hazard of exposure to electric current existed due to the damage to the outer jacket. I agree with 

the Secretary that the inner insulation did not provide protection from mechanical damage. The 

same work conditions that damaged the outer jacket could also damage the inner insulation, 

leading to the immediate exposure of a miner to electric current. The mandatory safety standard 

at §56.12004 specifically requires protection from mechanical damage to prevent this scenario. 

Damage to the outer jacket of the power cord would expose miners to electric current under 

normal working conditions, creating a discrete safety hazard. 

Although the cord was deenergized during the inspection, it could be reenergized and 

used at anytime. Thus, it is reasonably likely that the hazard of exposure to electric current could 

contribute to an injury. The damage to the outer jacket of the power cord could injure any miner 

who came in contact with it, and every time the welder was used, there was a risk that a miner 

could come into contact with the cord. The discrete safety hazard of exposure to electric current 

was reasonably likely to contribute to an injury. 

33 FMSHRC Page 1662
Furthermore, I credit Inspector Norwood’s testimony that the 20 amp breaker would not 

protect a miner from injury. I likewise reject Respondent’s argument that the conductor was not 

powerful enough to be a hazard and find that the power cord could reasonably cause a fatality. 

Respondent argues that because the electrical conductor in question only carried a level of 

voltage common to residential dwellings (120 volts), it would not pose a significant safety 

hazard to miners if exposed to mechanical damage. Res. PT Br. 22. Inspector Norwood testified 

that exposure to120 volts of electricity kills more people than exposure to any other voltage. Tr. 

101. Mr. Hoskins also testified that 120 volts can kill a person. See Tr. 112. It is reasonable that 

exposure to 120 volts could cause an injury of a reasonably serious nature. 

It is reasonably likely that the discrete safety hazard of exposure to electric current caused 

by the damaged power cord could injure a miner, and it is reasonable that the injury could prove 

fatal. Accordingly, I find that the violation was S&S. I likewise agree with the Secretary’s 

rationale as to gravity and negligence. Thus, I find that the penalty of $1795.00 is warranted. 

E. Citation No. 6596516 

On January 5, 2010, Inspector Norwood also issued Citation No. 6596516 to Respondent, 

reporting the following: 

The portable work light being used on the firing floor was not guarded. The light 

was in use and about 4 feet from the floor. Duct tape was being used from the top 

of the light. Contact with the hot energized lamp could cause electrical shock, 

burns, and or cuts. 

Gov. Ex. 21. 

The inspector found that an injury was reasonably likely to occur, that an injury could 

reasonably be expected to be fatal, and that the negligence was moderate. See Gov. Ex. 21. 

Inspector Norwood averred in his pre-hearing affidavit that the violation was significant and 

substantial. Norwood Aff. Gov Ex. 2A, at 29. 

The mandatory safety standard at §56.12034 has already been cited supra. 

At hearing, Inspector Norwood said that there was glass over the bulb, but the glass 

became hot enough to cause burns. Although there were three pieces of metal over the glass, 

Norwood did not believe that the metal could prevent someone from coming into contact with 

the glass. Tr. 119. Mr. Wolfenbarger insisted the pieces of metal constituted a guard; however, 

he did admit that the metal could not prevent someone from touching the glass. See Tr. 128. Mr. 

Hoskins further admitted that he would replace the light due to a missing lens. Tr. 131. 

ANALYSIS 

The unguarded light was only 4 feet tall and a worker was using the light as a stand 

during the inspection. Sec’y’s PT Br. 18. Coming in contact with the light could cause burns. 

33 FMSHRC Page 1663
 

Tr. 120. The light was unguarded, hot, and in the middle of a work area; thus, Respondent 

violated §56.12034 and clearly exposed miners to a discrete safety hazard in the form of burns. 

However, it was unlikely that a miner could trip on a chain, fall, and contact the light at 

the precise angle to cause a burn. Thus, I conclude that a miner was not reasonably likely to 

sustain an injury from the light, precluding an S&S designation. 

I further find that any injury actually suffered would not be fatal or permanently disabling 

in nature and would reasonably be expected to result in lost work days or restricted duty. 

The negligence associated with this violation was only “low” in nature. Given the 

foregoing, the penalty of $250.00 is appropriate. 

F. Citation No. 6596533 

On January 6, 2010, Inspector Norwood issued Citation No. 6596533 to Respondent, 

reporting: “The flex conduit was pulled from the 527 screw motor junction box. The motor 

wiring was exposed to vibration and the sharp metal. Electrical shock is reasonably likely if this 

condition continues to go uncorrected.” Gov. Ex. 24. 

The inspector found that an injury was reasonably likely to occur, that an injury could 

reasonably be expected to be fatal, and that the negligence was moderate. See Gov. Ex. 24. 

Inspector Norwood averred in his pre-hearing affidavit that the violation was significant and 

substantial. See Norwood Aff. Gov Ex. 2A, at 34. 

The mandatory safety standard at §56.12004 has already been cited supra. 

Inspector Norwood testified that a conduit meant to protect inner conductors became 

detached, exposing the conductors to sharp edges that were moving due to vibration from the 

attached motor. Tr. 146. 

The Respondent’s witnesses disagreed that the inner conductors could be damaged due to 

the loose conduit. Tommy Buck, Respondent’s Plant Supervisor, testified that the motor vibrates 

very little and that there are no sharp edges to damage the conductors. Tr. 148. Agreeing with 

Mr. Buck, Mr. Hoskins testified that there are no sharp edges on the conduit or near the area that 

attaches to the conduit. Tr. 151. Although he admitted that the conduit should be reattached, 

Hoskins also testified that the insulation of the inner conductors was unharmed and therefore, 

contacting the inner conductors would not shock a miner. Tr. 152. 

ANALYSIS 

I credit the testimony of Respondent’s witnesses that the loose flex conduit and exposed 

wires were sufficiently insulated and safe from mechanical damage. The approximately two 

inches of wire exposed when the flex conduit moved were insulated and were of sufficient size 

33 FMSHRC Page 1664
 

 

 

and carrying capacity to prevent damage to the insulation under normal circumstances. Due to 

the low amount of vibration, the insulation and the location of the wires, they were protected 

from mechanical damage. Thus, I conclude that the cited condition did not violate the 

mandatory safety standard at §56.12004. 

Accordingly, Citation No. 6596533 is hereby VACATED. 

GRAVITY AND NEGLIGENCE FINDINGS 

The Gravity and Negligence findings as to all citations, where applicable, are set forth 

supra. 

ORDER 

Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), the ALJ 

decides the following: 

Citation No. 30 C.F.R. § Penalty 

6596503 §56.12034 $1,000.00 

6596504 §56.11002 $2,687.00 

6596506 §56.11002 $807.00 

6596515 §56.12004 $1,795.00 

6596516 §56.12034 $250.00 

6596533 §56.12004 VACATED 

TOTAL: $6,539.00 

33 FMSHRC Page 1665
 

 

For the reasons set forth above, citation No. 6596533 is hereby VACATED. The 

remaining citations are affirmed or modified as set forth herein. Respondent is ORDERED to 

pay the Secretary of Labor the sum of $6,539.00. 

Respondent is further ORDERED to pay the additional sum of $1,339.00 it previously 

agreed to pay pursuant to its partial settlement agreement for Citation/Order Nos. 6596509, 

6596510, 6596513, 6596514, 6596519 and 6596529. 

Accordingly, Respondent shall pay a total penalty of $7,878.00 within 40 days of the date 

of this Order.6 

_/s/ John Kent Lewis ______________ 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center 401 Liberty Avenue, 

Suite 1340, Pittsburgh, PA 15222 

/BJR 

6

 Payment should be sent to: Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. BOX 790390, St. Louis, MO 63179-0390. 

33 FMSHRC Page 1666
 

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 27, 2011 

SECRETARY OF LABOR, (MSHA) : TEMPORARY REINSTATEMENT 

on behalf of KENNETH R. WILDER, : PROCEEDING 

 Complainant :

 : Docket No. KENT 2011-1224-D 

v. : BARB CD 2011-06 

:

PRIVATE INVESTIGATION AND :

COUNTER INTELLIGENCE : Abner Branch Mine 

SERVICES, INC., and BLEDSOE : Mine ID 15-19132 

COAL CORPORATION, :

 Respondents : 

DECISION AND ORDER 

REINSTATING KENNETH R. WILDER 

Appearances: Tony Oppegard, Esq., Lexington, KY, and Wes Addington, Esq., Appalachian 

Citizens’ Law Center (“ACLC”), Whitesburg, KY, representing Kenneth R. Wilder. 

Matthew S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 

Nashville, TN, representing the Secretary of Labor (MSHA) on behalf of Kenneth 

R. Wilder. 

John Williams, Esq., Rajkovic, Williams, Kilpatrick & True, PLLC, Lexington,
	

KY, representing Bledsoe Coal Corporation. 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, Lexington, KY,
	

representing PICI.
	

Before: Judge L. Zane Gill 

This matter is before me on an Application for Temporary Reinstatement filed on June 27, 

2011, by the Secretary on behalf of Kenneth R. Wilder, pursuant to Section 105(c)(2) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). On May 24, 2011, Wilder 

filed a complaint with the Secretary’s Mine Safety and Health Administration (MSHA) alleging 

that his termination was motivated by his protected activity.1 The Secretary contends that Wilder’s 

complaint was not frivolous, and seeks an order requiring the employing entities, Private 

Investigation and Counter Intelligence Services, Inc., (“PICI”) and Bledsoe Coal Corporation 

(“Bledsoe”) to reinstate Wilder to his former position as surface staffer at the Abner Branch Mine 

(“Abner Branch”), pending the completion of an investigation and final decision on the merits of 

1 Under Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, a 

“protected activity” can include making a “complaint notifying the operator [. . .] of an alleged 

danger or safety or health violation in a coal or other mine.” 

33 FMSHRC Page 1667
 

his discrimination complaint. Bledsoe filed a Request for Hearing on July 5, 2011. An expedited 

hearing on the application was held in London, Kentucky, on July 15, 2011. 

For the reasons that follow, I grant the application and order Wilder’s temporary 

reinstatement. 

SUMMARY OF THE EVIDENCE 

Kenneth R. “Ronnie” Wilder (“Wilder”) was employed by PICI and assigned to work at 

Bledsoe’s Abner Branch Mine (“Abner Branch”) in Leslie County, KY2

. (Tr. 29:4-7) Wilder 

worked at Abner Branch from February 2010 (Tr. 28:1-3), until he was terminated on May 4, 

2011. (Tr. 52:1-16) At the time relevant to this decision, Wilder worked as a “staffer” or surface 

laborer. (Tr. 29:20-30:6) Bledsoe and PICI have a contractual arrangement by which certain 

employees, including Wilder, are recruited and placed by PICI into jobs at Bledsoe. (Tr. 28:4-22) 

Wilder was supervised by Bledsoe management - Robert Peterson. (Tr. 31:1-5) 

On May 3, 2011, Lawrence Lawson, Bledsoe’s Chief Maintenance Manager at Abner 

Branch, instructed Wilder to remove vines that had attached themselves to a 480-volt quadraplex 

power line and guy wires supporting the quadraplex power pole.3 (Tr. 33:21-34:9) This was a 

duty normally considered part of Wilder’s general surface maintenance assignment. (Tr 29:25-

30:6) It rained heavily at Abner Branch on May 3, 2011. (Tr. 32:23-33:2) Wilder attempted to 

remove the vines as instructed, but became concerned that he might be electrocuted in the process, 

given the fact that the quadraplex line was energized (Tr. 44:21-24) and he would be working in 

water from the rain storm. (Tr. 47:19-48:1) Wilder attempted to get help or advice from other 

employees, (Tr. 47:1-15) but ultimately decided he could not safely proceed. (Tr. 50:7-20) 

Wilder could not immediately tell Robert Peterson, his immediate Abner Branch 

supervisor, that he needed assistance. (Tr. 45:7-50:13) Peterson was busy with underground 

duties at the time. (Tr. 48:2-10) Wilder asked other employees, some of whom he knew to have 

electrician experience, for help. None was able to help him. (Tr. 46:14-15) Wilder attempted to 

remove the vines alone using a font-end loader and a rope, (Tr. 48:2-25) but ultimately decided he 

could not safely remove the vines, as instructed. (Tr. 49:18-24) Wilder then told Peterson near the 

end of his shift that he had stopped out of fear of electrocution. Peterson told Wilder his decision 

not to do the task would cause Wilder “trouble.” (Tr. 50:7-20; 51:1-9) 

The next day, May 4, 2011, Wilder received a phone call from Don Toy of PICI in which 

Toy told him that management from Abner Branch had contacted PICI to tell them that Wilder 

could not work there any more. (Tr. 52:1-19) Wilder attempted to learn from Abner Branch why 

2 The Abner Branch mine and the Bledsoe Coal Corporation are controlled by James
	

River Coal Company.
	

3 Bledsoe had received a non-S&S MSHA citation during an earlier shift that same day 

relating to vines growing on these lines. (Tr. 44:5-20) 

33 FMSHRC Page 1668
he had been fired, and was told generally that he was “not working out.” 4 (Tr. 53:21-55:10; 57:8-

16) 

All other facts arising from the evidence presented at the hearing on this matter, including 

the justification to terminate proffered by the Petitioners, relate to issues beyond the limited scope 

of this proceeding and are not discussed here.5 

DISCUSSION OF RELEVANT LAW 

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

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

181,95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of1977, at 623 (1978). 

4 PICI and Bledsoe suggested at the hearing that Wilder had not been “terminated” 

because of a comment made by Don Toy to the effect that Wilder could apply (or re-apply) for 

placement at another mine. They argued that since Wilder did not pursue that option, he was 

somehow still employed by PICI. I decline to engage in a meaningless diversion into the 

semantic implications of Toy’s comment. Wilder was told that his employment at Bledsoe was 

terminated; for our purposes here, that is an adverse action irrespective of PICI’s version of the 

wording used. 

5 The following is a list of ancillary facts broached at the hearing which may be relevant 

for a trial on the merits, but are beyond the scope of this limited temporary reinstatement 

hearing: 

•		 Whether Bledsoe / PICI had sufficient, non-discriminatory grounds to terminate Wilder. 

•		 How the decision to terminate Wilder was reached. 

•		 Whether Bledsoe’s / PICI’s proffered non-discriminatory termination grounds were
	

pretextual, including whether Wilder knew or had reason to know that Bledsoe / PICI
	

considered his performance to be substandard.
	

•		 How to assess damages, including mitigation of damages. 

•		 Whether, judged by the relevant evidentiary standard, Wilder’s stated fear of 

electrocution was believable, reasonable, and motivated his refusal to complete the task. 

•		 Whether PICI was aware of Bledsoe’s reasons to terminate Wilder, and what those
	

reasons were.
	

•		 Whether, judged by the relevant evidentiary standard, Wilder’s refusal to perform the
	

task constituted a protected activity.
	

•		 Whether Wilder’s failure to re-apply with PICI for placement at another mine is factually 

or legally significant. 

•		 How to assess the credibility of various witnesses, including whether Wilder’s statement 

about fighting “dirty” with Bledsoe / PICI affects the credibility assessment. 

33 FMSHRC Page 1669
 

When a person covered by the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

815(c)(2) notifies the Secretary that he/she believes discrimination has occurred, the Secretary is 

obligated by Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2) to investigate, “and if the 

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

basis [. . .], shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 

The Commission has established a procedure for making the reinstatement decision. 

Commission Rule 45(d), 29 C.F.R. § 2700.45(d) states: 

The scope of a hearing on an application for temporary reinstatement is limited to a 

determination as to whether the complaint was frivolously brought. The burden of 

proof is upon the Secretary to establish that the complaint was not frivolously 

brought. In support for [her] application for temporary reinstatement, the Secretary 

may limit [her] presentation to the testimony of the complainant. The Respondent 

shall have an opportunity to examine any witness called by the Secretary and may 

present testimony and documentary evidence in support of its position that the 

complaint was frivolously brought. 

29 C.F.R. § 2700.45(d) 

As the above makes clear, and as I noted at the hearing on July 15, 2011, the scope of a 

temporary reinstatement hearing is narrow, being limited to a determination as to whether a 

miner’s complaint was frivolously brought. Sec’y of Labor on behalf of Price v. Jim Walter 

Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); aff’d sub nom, Jim Walter Resources, 

Inc., v. FMSHRC, 920 F. 2d 738, (11th Cir. 1990). It is not the judge’s duty, nor is it the 

Commission’s, to resolve the conflict in testimony at this preliminary stage of the proceedings.” 

Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). In 

reviewing a judge’s temporary reinstatement order, the Commission has applied the substantial 

evidence standard.6 See id. at 719; Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co., 

15 FMSHRC 2425, 2426 (Dec. 1993). 

The legislative history for section 105(c) reveals that Congress discussed the term 

“frivolous” with the understanding that a complaint is not frivolous if it “appears to have merit.” 

S. Rep. No. 181, 95th Cong. 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of Federal Mine Safety 

and Health Act of 1977, at 6240625 (1978). The “not frivolously brought” standard has also been 

equated to the “reasonable cause to believe” standard applied in other contexts. Jim Walter 

6 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). “Substantive evidence” means “such relevant evidence as a reliable mind might 

accept as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 

229 (1938)). 

33 FMSHRC Page 1670
 

Resources, Inc., 920 Fed 2d at 747; Sec’y of Labor on behalf of Bussanich v. Centralia Mining 

Co., 22 FMSRHC 153, 157 (February 2000). 

Under section 105(c) of the Act, the Secretary bears the burden of establishing: (1) that the 

miner engaged in protected activity; and (2) that the adverse action complained of was motivated 

in any part by that activity. Sec’y of Labor on behalf of Paula v. Consolidation Coal., 2 FMSRHC 

2786 (October 1980), rev’d on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 

F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (April 1981); Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 

FMSHRC 1842 (August 1984); Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSRHC 2508 (November 1981), rev’d on other grounds sub nom.; Donovan v. Phelps Dodge 

Corp., 709 F.2d 86 (D.C. Cir. 1983). 

Thus, an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination with the attendant requirement of proving all necessary elements at a higher 

evidentiary standard, as would be required in a trial on the merits. But, the applicant must provide 

evidence of sufficient quality and quantity (substantial evidence) to allow the judge to find, by 

application of the “reasonable cause to believe” standard, that: (1) the applicant engaged in 

protected activity; and (2) that there is sufficient showing of a nexus between the protected activity 

and the alleged discrimination to support a conclusion that the complaint of discrimination is not 

frivolous. 

Regarding the nexus requirement, other judges and the Commission have adopted elements 

of the full prima facie case to create an analytical framework that comports with the strictures of 

the limited evidentiary scope of the temporary reinstatement process yet is useful in bridging the 

sometimes difficult gap between alleged actions and the intentions behind them. In recognition of 

the fact that direct evidence of intent or motivation is rarely found, the Commission has identified 

several circumstantial indicia of discriminatory intent: (1) hostility or animus toward the protected 

activity; (2) knowledge of the protected activity; and (3) coincidence in time between the protected 

activity and the adverse action. Secretary of Labor, Mine Safety and Health Administration 

(MSHA) on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089, 2009 WL 

3802726, (F.M.S.H.R.C.), October 22, 2009, KENT 2009-1428-D. 

APPLICATION OF LAW TO THE EVIDENCE 

On its face, the evidence summarized above is reasonably consistent with Wilder’s claim to 

have been motivated by fear for his personal safety, which is a recognized “protected activity” 

under the Act. There is no dispute that within twenty-four hours of Wilder’s refusal to complete 

the assigned task, his employment at Abner Branch was terminated. There is likewise no dispute 

that Bledsoe was aware both that Wilder declined to perform the assigned task and that he claimed 

to do so out of fear of electrocution. There is also uncontradicted evidence, which if found 

sufficiently credible, could support a finding that Bledsoe management, i.e., Robert Peterson, acted 

with hostility towards Wilder’s claim of fear for his personal safety. Thus, the evidence is 

sufficient to create a “reasonable cause to believe” that Bledsoe Coal, the ultimate decision maker 

here, had knowledge of Wilder’s protected activity claim, that Bledsoe (Robert Peterson) 

33 FMSHRC Page 1671
demonstrated animus toward Wilder, and that there was a temporal coincidence between Wilder’s 

protected activity, the employer’s animus, and his termination. 

Petitioner’s argument that they had a valid non-discriminatory reason to fire Wilder is an 

issue for a hearing on the merits of the entire discrimination case and is beyond the limited scope 

of this temporary reinstatement proceeding. 

ORDER 

For these reasons, Bledsoe and PICI are ORDERED to reinstate Wilder to the position he 

held on May 3, 2011, or to an equivalent position, at the same rate of pay and with the same hours 

and benefits to which he was then entitled. Wilder’s reinstatement is not open-ended. It will end 

upon a final order on Wilder’s complaint. 30 U.S.C. § 815 (c)(2). Therefore, it is incumbent on 

the Secretary to determine promptly whether or not she will file a complaint with the Commission 

under section 105(c)(2) of the Act based on Wilder’s complaint to MSHA. Accordingly, the 

Secretary is ORDERED to advise counsel for Bledsoe and PICI and the court of her decision by 

September 30, 2011, and, if a decision has not been made by that date, I will entertain a motion to 

terminate the reinstatement. 

_ /s/ L. Zane Gill____________ 

L. Zane Gill 

Administrative Law Judge 

33 FMSHRC Page 1672
Distribution: (Certified Mail): 

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., Attorney-at-Law, P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whtesburg, KY 41858 

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Center 

Circle, Ste. 375, Lexington, KY 40513 

Richard D. Storm, PICI, 203 Eastern Avenue, Carlisle, KY 40311 

Billy R. Shelton, Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Drive, Suite 310, 

Lexington, KY 40509-1889 

/lp 

33 FMSHRC Page 1673
 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

July 27, 2011 

MACH MINING, LLC., : CONTEST PROCEEDING 

Contestant, : 

: Docket No. LAKE 2009-716-R 

v. : Citation No. 8414529; 09/21/09 

: 

: Mine: Mach No. 1 

SECRETARY OF LABOR, : Mine ID: 11-03141

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : 

Respondent. : 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2010-190

 Petitioner, : A.C. No. 11-03141-201809 

: 

v. : 

: 

MACH MINING, LLC., : 

Respondent : Mine: Mach No. 1 Mine 

AMENDED DECISION 1 

Appearances: Edward Hartman, Office of the Solicitor, U.S. Dept. of Labor, Chicago, 

Illinois, for the Petitioner. 

Christopher Pence, Allen, Guthrie & Thomas, Charleston, West Virginia, 

for the Respondent. 

Before: Judge Miller 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Mach Mining, 

LLC, (“Mach”) at its Mach No. 1 Mine (the “mine”) near Johnston City, Illinois, 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:” or “Act”). The case includes one violation assessed a total penalty of 

1 This decision is amended to correct minor clerical errors, including the penalty amount on the 

final page. 

33 FMSHRC Page 1674
$4,000.00. The parties presented testimony and documentary evidence at the hearing held in St. 

Louis, Missouri commencing on June 15, 2011. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Mach’s No. 1 Mine, which began mining coal in 2005, is an underground coal mine near 

Johnston City, Illinois. Coal is mined using continuous miners that develop gate roads, and a 

longwall shearer to retreat-mine panels. (Tr. 7). The gate roads that contain the loader, power 

center, and other longwall infrastructure, are referred to as the “headgate entries,” while the 

entries on the opposite side are refereed to as the “tailgate entries.” At the time the order in 

question was issued, Mach had completed mining longwall Panel No. 1, and was in the process 

of mining longwall Panel No. 2 and driving the headgate road for Panel No. 3. Mach had a base 

ventilation plan in place, as well as a site-specific plan for each of the panels being mined. 

At hearing, the parties stipulated that Mach Mining is an operator of an underground coal 

mine, and that the mine is subject to the jurisdiction of the Act and the Commission. The parties 

further stipulated that Mach is a large operator and that the $4,000.00 penalty proposed by the 

Secretary will not hinder its ability to continue in business. (Tr. 8, 16). A history of assessed 

violations was admitted as Sec’y Ex.12. (Tr. 107). 

A. Citation No. 8414529 

1. The Violation 

The violation in this case is related to the ongoing negotiation of the ventilation plans for 

Panel Nos. 2 and 3, but is not a citation issued due to an impasse in plan negotiations. This 

citation is also related to a citation issued on March 13, 2009 by Inspector Bobby F. Jones, Order 

No. 8414238. Jones issued a 104(d)(1) order, after he discovered that Mach had mined past the 

projection point described in its ventilation plan. Mach had previously submitted, as part of its 

ventilation plan, a map showing three longwall panels, each of which were 18,000 feet in length. 

The ventilation plan, as submitted, was approved in March 2008. On March 13, 2009, Jones 

discovered that the Respondent, in violation of its approved ventilation plan, had mined 1,000 

feet beyond the proposed set up room in Headgate No. 3. By mining 1,000 feet past its projected 

point, Mach created a stair-step effect and, thus, changed the design of its ventilation plan. After 

the order was issued by Jones, Mach filed a notice of contest and, in April, 2009, after a 

submission of the issue on the record, ALJ Manning issued an order in which he determined that 

the mine violated its ventilation plan when it mined beyond the proposed area and created the 

stair-step system not listed in the plan.2 

Mach began working on an amended ventilation plan for longwall 3, and, after a number 

of meetings both in the district office and at the MSHA national office in Arlington, Mach 

2 Subsequently, ALJ Manning set the remaining issues for hearing in September, 2009, but prior 

to the hearing and while the parties were negotiating a new plan, the Secretary terminated the 

citation. 

33 FMSHRC Page 1675
submitted a revised plan, as well as information previously requested by MSHA on September 3, 

2009. On September 9, 2009, Jones terminated Order No. 8414238 with a one sentence 

pronouncement, “MSHA hereby terminates this order.” Shortly after the order was terminated, 

on September 20, 2009, Mach resumed mining in the Headgate No. 3 area, thereby resulting in 

Order No. 8414529, i.e., the order at issue in this case issued on September 21, 2009 by 

Inspector Philip Long. The parties continued to discuss the provisions of both the base 

ventilation plan and the plan specific to Headgate No. 3. Eventually, the parties reached an 

impasse. As a result, MSHA issued two technical citations and letters of deficiency on 

September 29, 2009. The Respondent filed a notice of contest to the two citations and a hearing 

was held to resolve the plan dispute on November 3, 2009. Following the hearing, I issued a 

decision in which I determined that the District Manager did not abuse his discretion in requiring 

certain portions of the plan. 

The order that is the subject of this case was issued by Inspector Long after the parties 

began negotiations on the general ventilation plan and the plan specific to Headgate No.3, but 

before the parties reached an impasse. On September 20, 2009, Mach resumed production in 

Headgate No. 3 asserting that the termination of Order 8414238 not only terminated the 

violation, but that it also approved Mach’s new ventilation plan. Inspector Phillip Long issued 

the subject order on September 21, 2009, for a violation of 30 C.F.R. § 75.370(d). The citation 

alleges the following: 

The extraction of coal by the normal mining process had resumed 

on the No. 3 Headgate Unit, MMU 002, prior to the proposed 

ventilation plan being approved by the district manger. The 

mining process had started in No.3 Entry, inby the No. 176 

crosscut. Approximately 10' of advanced had been made on the 

curtain side of the entry. This order is issued upon the direction of 

district manager. 

Inspector Long testified regarding the issuance of Order No. 8414529 and the reasons 

therefore. Long, who is currently retired, was a MSHA Coal Mine Safety and Health Inspector 

for eleven years. Prior to becoming an inspector, Long worked in the coal industry for 28 years, 

primarily with Old Ben Coal Company. He held various positions and worked many years in the 

safety department. Long is a veteran of the United States Air Force, attended Southern Illinois 

University for a time, and has taken additional classes throughout his career. (Tr. 17-21). 

Long was assigned to follow Jones in the rotation to inspect the Mach No. 1 Mine 

beginning in July, 2009. Prior to conducting his first inspection at Mach, he discussed the 

history of the mine with Jones, as well as the outstanding citations and orders. Jones explained 

that he had issued Order No. 8414238 for a ventilation violation in March, 2009, which remained 

in effect. Long understood that no ventilation plan for Headgate No. 3 had been approved, and 

that mining was not occurring on that panel. Long testified that he reviews the mine file each 

time he conducts an inspection. From the time he began inspecting the Mach No. 1 mine until 

the time he issued this order on September 21, 2009, Long did not see any approved ventilation 

plan in the mine file, nor was he notified that any ventilation plan had been approved. (Tr. 23-

25). Long did not terminate the order issued by Jones, but was aware that Jones’ supervisor, 

33 FMSHRC Page 1676
Rennie, instructed Jones to terminate the order in September. Long had no further information 

about the issuance or the termination of Jones’ order. (Tr. 25-26). 

As Long began his inspection rotation at Mach, he had conversations about the 

ventilation plan with Anthony Webb, president of Mach, as well as with other managers at the 

mine. Long testified that, on several occasions, he discussed with Webb, Webb’s concern with 

the ventilation plan, particularly after Jones had terminated the Order No. 8414238 on September 

9, 2009. Long made several notes about the conversations, including Sec’y Ex. 9, Long’s 

inspection notes for September 16, 2009. The notes demonstrate that Long spoke with Webb on 

that day and discussed that the mine was awaiting ventilation plan approval. Further, the notes 

reflect that Webb expressed his concern that it might take some time to win approval. (Tr. 26-

27). Next, Long’s notes from September 17, 2009, refer to a conversation with Webb while 

conducting an inspection on that date. Sec’y Ex. 10. Again, Long spoke with Webb and 

discussed the start up of the Headgate No. 3 unit. The two of them discussed the plan approval 

process and the fact that the mine continued to wait for MSHA approval. Additionally, on that 

date, Webb asked Long if “paper would be issued” if Mach started up without a plan. Long 

responded that it was “more than likely” that it would be issued. Long testified that he answered 

the inquiry based upon his understanding that no ventilation plan had yet been approved for the 

Headgate No. 3 area. If the plan had been approved, he would have told Webb to continue 

mining. (Tr. 30-33). I find Long to be a very credible and knowledgeable witness, who 

responded with thoughtful, candid, and detailed answers. 

On September 21, 2009, Long issued the Order No. 8414529 to the mine, Sec’y Ex. 6, for 

operating without an approved plan. Long’s notes underscore that, on September 21, 2009, he 

spoke first with Chris England. Sec’y Ex. 7. England told Long that the mine was very close to 

starting up in Headgate No. 3 and asked if Long was going to issue an order if they started up. 

Long responded “yes,” that he would issue an order if the plan had not been approved. (Tr. 34-

36). Long then learned from Webb that the mine had in fact started production in Headgate No. 

3. Long told the Respondent that he would travel to the area to confirm that mining was taking 

place, and, if he discovered that mining was occurring, he would issue a 104(d)(2) order pursuant 

to 30 C.F.R. § 75. 370(d) for not having an approved ventilation plan in place. Long then 

traveled underground, observed mining in Headgate No. 3, and issued the order for mining 

without an approved plan. Upon observing the mining in Headgate No. 3, Long telephoned the 

district office and spoke with the District Manager before he issued the violation as an 

unwarrantable failure to comply. Long agreed that he was instructed to issue the violation, but 

he also indicated that, while he was instructed to issue the order as “reckless disregard,” he 

instead issued it as “high” negligence, which is what he believed it should have been. At no time 

did Long understand that Webb, or any other person at the mine, was operating under the 

assumption that the termination of the order previously issued by Jones was tantamount to an 

approval of the ventilation plan. (Tr. 36-41). 

Anthony Webb testified on behalf of Mach. It was his belief that a ventilation plan was 

approved when Order No. 8414238 was terminated by Jones and, therefore, no violation exists. 

(Tr. 89). Webb, the president of Mach mining, is responsible for all actions at the mine, both on 

the surface and underground. Part of his responsibility, both currently and in 2009, includes the 

development of ventilation plans. (Tr. 66-67). Webb explained the sequence of events leading 

33 FMSHRC Page 1677
up to the citation issued by Long with little variance from the description provided by Long. He 

began with a meeting held on February of 2009. Webb asserted that Mach originally began 

negotiating the bleeder system of Panel No. 2 due to poor roof conditions and MSHA’s concern 

about the airflow. Mach told MSHA of its intent to mine inby the Panel No. 2 bleeders in order 

to work around the bad roof it had encountered. (Tr. 70-72). Webb had several meetings with 

MSHA personnel and MSHA sought a map depicting the connection between Panel Nos. 2 and 

3. On February 24, 2009, Mach representatives traveled to Arlington to meet at MSHA 

headquarters with a number of people, including the deputy administrator for coal. During that 

meeting, MSHA again asked for the map and Webb testified that he “forgot” to give District 8 

the map. It was mailed the next day. Mach Ex. B. (Tr. 72). MSHA did not agree with the 

changes Mach sought to make and began further discussions about the ventilation of Panel No. 

2. MSHA subsequently issued a “technical citation,” Mach Ex. C, after the parties reached an 

impasse regarding the Headgate No. 2 area. Mach contested the citation and the case was 

assigned to ALJ Manning and set for hearing in April. (Tr. 75). Mach continued to work with 

MSHA and the parties resolved the matter prior to the hearing. Subsequently MSHA vacated the 

citation on April 15, 2009. The mine, with MSHA’s acknowledgment, then reverted to the plan 

they had suggested. The mine did not receive a letter formally approving Panel No. 2, and no 

other actions were taken. (Tr. 76-78). It is important for purposes of the Mach defense to note 

that this citation was not terminated, and was, instead vacated, and the parties reverted back to an 

earlier plan. 

Webb testified that, in the meantime, on March 13, 2009, Jones issued an order for an 

alleged ventilation violation at Headgate No. 3 for mining beyond the area depicted on the 

ventilation plan and creating, in effect, a stair-step ventilation system. This citation was not 

issued as a technical violation as a result of an impasse in the ventilation negotiation. Again, 

Mach contested the order issued by Jones and, again, the case was assigned to ALJ Manning. 

Mach requested a second meeting in Arlington and met with MSHA on March 18, 2009 

concerning the Panel No. 3 plan. District 8 ventilation plan specialists attended by telephone. 

District 8 was instructed to lay out for Mach what it expected to see at Panel No. 3 and, 

subsequently, Mach met again with the District 8 office. Mach then submitted “what they felt . . 

. [MSHA] had requested.” (Tr. 79-80). In late May, while negotiations continued, Mach came 

up for a regular six month review of its base ventilation plan at the mine. The base plan was 

submitted to MSHA on June 4, 2009. In response to its submission, Mach learned of a new 

regulation requiring a justification for the use of belt air in the intake. The justification 

submitted by Mach was rejected and the parties held another meeting to discuss that issue. (Tr. 

82). After meeting with the district office, Mach once again sought and was granted the 

opportunity to meet with the coal supervisors in Arlington on July 7. At that meeting, the parties 

discussed a number of issues, including the belt air. MSHA asked Mach about Headgate No. 3, 

and Mach acknowledged that the district office had requested further information, which had not 

initially been provided, about the ventilation for that area. (Tr. 82-83). 

Webb explained that, in the meantime, ALJ Manning decided, through written 

submissions, that Mach had indeed violated the mandatory standard by mining the stair-step 

system in Headgate No. 3 without prior approval. However, Manning did not immediately rule 

on the negligence or penalty associated with the violation. During this time, while negotiations 

were ongoing, MSHA refused to terminate the citation issued on Panel No. 3. On August 6, 

33 FMSHRC Page 1678
Webb received a letter, Mach Ex. E, that set forth in writing the discussions already held with 

MSHA. According to Webb, the letter set forth a plan for submission by Mach to receive 

approval of a ventilation plan for Headgate No. 3. While Webb insists that the letter contained 

information about what Mach needed to do to “terminate the March 13th D order[,]” it really 

addresses requirements for a ventilation plan. Webb decided that he would ask ALJ Manning to 

decide if Mach had submitted an acceptable ventilation plan, which would then result in the 

order being terminated. On August 18, Manning agreed that he retained jurisdiction over the 

order assigned to him and set the matter for hearing in September. The issue was not heard by 

Manning because MSHA terminated the order prior to the hearing date. (Tr. 83-86) 

Webb testified that, on September 3, 2009, he sent a letter to the District Manager for 

MSHA District 8 and included information previously requested by MSHA to support the 

ventilation plan being proposed by Mach for Headgate No. 3. Mach Ex. F. Webb asked that 

MSHA terminate the order issued by Jones in March, and provided information regarding the 

ventilation plan in Panel No. 3. (Tr. 86-87). Shortly thereafter, on September 9, 2009, and 

without any indication that the ventilation plan had been approved, Jones terminated the order. 

Webb opined that the termination of the order was the relief that Mach sought from ALJ 

Manning, and he believed the termination would allow them to continue mining in Headgate No. 

3. At the time Jones issued the termination of the order, he advised Webb to speak with his 

supervisors in order to understand why it was terminated and what it would mean for the mine. 

Webb called Rennie, the supervisor of Jones, but Rennie could not provide an answer and 

referred Webb to the District Manager. Webb chose not to contact the District Manager, and, 

instead, chose to believe that the termination was tantamount to an approval of a ventilation plan. 

Webb next had a number of conversations, as detailed by Long and discussed above, wondering 

when the ventilation plan would be approved and asking Long if a citation would be issued if the 

mine continued mining activity in Headgate No. 3. In each instance, Long explained that a 

citation would issue if no plan were in place. (Tr. 88-89). 

Webb testified that, on September 17, 2009, Mach’s attorney wrote a letter to the 

Secretary explaining why he believed the plan had been approved and notifying MSHA that 

mining would commence in Headgate No. 3. Mach Ex. G. In the meantime, as Webb described, 

he believed that he had an approved plan, by virtue of the termination, commencing on 

September 9, 2009. He prepared to mine Headgate No. 3. (Tr. 89-90). 

Webb explained that he attended nearly every meeting with MSHA, both locally and at 

the national office, and was familiar with all of the information relevant to the ventilation plan 

for Headgate No. 3. Webb believed that he had made every effort to communicate with MSHA 

and let them know of his plan. He testified that he was never told he could not resume mining, 

and he believed that the plan had been approved when the order was terminated. He based his 

belief on the fact that he had recently submitted the information sought by MSHA and because 

he sought termination of the order from ALJ Manning. (Tr. 92-34). 

I do not find Webb to be a credible witness, and find that his testimony was an 

after-the-fact attempt to make excuses for his actions. Webb acknowledges that he spoke with 

Long a number of times and told him the mine was awaiting MSHA approval of the ventilation 

plan, even after Order No. 8414238 had been terminated by Jones. (Tr. 96). On September 16, 

33 FMSHRC Page 1679
 

Long spoke to both Webb and England, and one or both of the men told Long that the company 

was awaiting plan approval. Webb’s testimony is contradictory in that he testified on the one 

hand the plan was approved on September 9, 2009 with the termination of the order and on the 

other hand when he spoke to Long on the 16th and the 17th, he told him that Mach continued to 

wait for plan approval. Webb acknowledged that he did ask Long if a citation would be issued if 

he continued mining, but he was only seeking to gain information from Long about the district’s 

position. Webb further agreed that Rennie instructed him to speak to the district office of the 

termination of the order issued by Jones, yet Webb chose not do so. (Tr. 99-100). Even though, 

it was important to Mach to begin operations in the Headgate No. 3 area, Webb did not feel he 

could call the district and speak to the only person who could approve the plan to clarify if it had 

been approved. Webb had been involved in the plan negotiation and had spoken a number of 

times to the district manager, as well as to supervisors in the Arlington headquarters and I find 

that he was aware that no ventilation plan had been approved. Webb did not receive any 

approval in writing, nor was he told by anyone at MSHA that he could continue to work in 

Headgate No. 3.. 

Mach argues that the termination of a cited condition means that the condition has been 

corrected. Mach cites Wyoming Fuel Co., 14 FMSHRC 1282, 1288 (Aug. 1992), for the premise 

that “the purpose of a termination notice is to indicate to an operator that it has successfully 

abated a violative condition,” and points out that MSHA’s own interpretation was that 

“termination of a citation means that the cited condition no longer exists, since abatement has 

been accomplished . . . .” Mach Prehearing Br. 4. I don’t find that argument persuasive given 

the negotiations necessary for plan approval and the breadth of a ventilation plan. 

Termination of a prior citation does not constitute the proper procedure for approval and, 

here, the termination did not address the many facets of the ventilation plan required by the 

regulations. The ventilation plan is either approved in writing or disapproved by the District 

Manager. Sewell Coal Co., v. Sec’y of Labor, 2 FMSHRC 2210, 2117 (Aug. 1980) (ALJ). The 

Secretary’s regulations require that the operator develop and follow a ventilation plan approved 

by the district manager. The plan must be designed to control methane and respirable dust and 

shall be suitable to the conditions and mining system at the mine. The ventilation plan must 

consist of two parts, i.e., the plan content as prescribed in section 75.371 and the ventilation map 

with information as prescribed in section 75.372. Only that portion of the map which contains 

information required under 75.371 will be subject to approval by the district manager. Among 

other things, ventilation plans are required to show the type and location of mechanical 

ventilation equipment installed and operated in the mine, as well as the quantity and velocity of 

air reaching the working face. Given these many plan requirements, an order terminating a 

violation, issued by an inspector, does not in any way substitute for plan approval. Further, an 

order is not a written approval by the district manager and to agree otherwise would open the 

door for mine operators to imagine many ways in which a plan could be created. The regulation 

is exceedingly clear; “[t]he district manager will notify the operator in writing of the approval or 

denial of approval of a proposed ventilation plan or proposed revision.” 30 C.F.R. § 

75.370(c)(1). There is no dispute that the District Manager did not provide a written approval of 

the plan for Headgate No. 3. 

Mach argues that, when MSHA earlier issued a technical citation on Panel No. 2, the 

33 FMSHRC Page 1680
 

parties negotiated the plan and MSHA subsequently vacated the citation without a new written 

plan. I can not agree with Mach that the “vacatur of citation 8414236 was the writing that 

approved Mach’s ventilation plan for panel 2." Resp. Br. 4. However, even it were, there are 

several obvious differences. First, the order for Panel No. 2 was vacated, not terminated. 

Second, the order on Panel No. 2 contains specific language about the ventilation plan 

requirements in the document vacating the order. Finally, when vacating the order for Panel No. 

2, MSHA made it clear that Mach could continue to use the plan that had been in place at the 

time the order was issued. The termination issued by Jones did not address the ventilation plan 

in any way. Given the obvious differences, and the requirements for plan approval, it is hard to 

imagine that a reasonable person with the experience of Mr. Webb could legitimately believe 

that a termination of the Order No. 8414238 amounted to a plan approval. Webb was involved 

in the lengthy discussion with MSHA about the various ventilation plans and, as such, I do not 

believe that Webb could, in good faith, understand that the negotiation process abruptly ended 

with the termination of an order. 

Mach and MSHA had been involved in lengthy discussions about the base ventilation 

plan, as well as the specific plan for Headgate No. 3, at the time Long issued his Order No. 

8414529. Yet, MSHA had not issued a “technical citation” as it does when an impasse is 

reached in a plan negotiation. 

A corrected condition is not the same as approval of a new ventilation plan. The 

termination of Order No. 8414238 was not a de facto plan approval because, as the regulation 

makes clear, a proposed ventilation plan may not be implemented before the MSHA district 

manager approves it. 30 C.F.R. § 75.372(d). The district manager must “notify the operator in 

writing” of the approval or denial of a proposed ventilation plan.” 30 C.F.R. § 75.370(c)(1). 

Given the regulatory requirements for a ventilation plan, the fact that only the district manager 

may approve the plan, and that the approval must be in writing, I find that the mine violated the 

mandatory standard as alleged. 

2. Significant and Substantial Violation 

Inspector Long determined that it was unlikely that the cited condition would result in the 

injury of a miner and that the violation was not significant and substantial. However, given the 

fact that the mine had mined a “stair-step” type of configuration in the bleeder system without 

seeking approval, and had resumed mining with no clear direction or specifically written, 

thought-out plan for the ventilation of the working area, I find the violation to be serious. 

3. Unwarrantable Failure 

Inspector Long determined that the operator’s negligence was high and designated the 

order as an 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.” 

Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). 

33 FMSHRC Page 1681
Aggravating factors include the length of time that the violation has existed, the extent of the 

violative condition, whether the operator has been placed on notice that greater efforts were 

necessary for compliance, the operator’s efforts in abating the violative condition, whether the 

violation was obvious or posed a high degree of danger and the operator’s knowledge of the 

existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); 

Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 

997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the 

relevant facts and circumstances of each case must be examined to determine if an actor’s 

conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 

Long issued the order as an unwarrantable failure based upon the conversations he had 

with the mine prior to the issuance of the order. He spoke with Webb a number of times about 

the plan and discussed that the mine was waiting for approval. Long was directed to issue the 

order and the District Manager suggested that it be marked as reckless disregard. However, 

since Long was not privilege to the many conversations and negotiations between Mach and the 

district, he issued the order as he believed appropriate, with a high negligence designation. Long 

indicated that Webb knew he had no ventilation plan in place and was placed on notice that he 

could not mine the Headgate No. 3 area without an approved plan. Still, Webb moved forward 

and began mining. As noted above, I do not agree that Webb had a good faith belief that there 

was a plan in place based upon the termination of the order. Jones terminated the original order, 

and Webb testified that he believed immediately, on September 9, 2009, that his plan had been 

approved. Still Webb questioned Jones and his supervisor about the effect of the order, but still 

failed to contact the one person who could provide a definitive answer, the District Manager. 

Webb told Long multiple times that the mine continued to wait for plan approval after 

September 9, 2011, and Long advised Webb multiple times that he could not begin mining 

without that plan. The violation was obvious and was done with full knowledge of the operator, 

as the mine intentionally began mining without a plan in place. While the violative condition 

may not have existed for an extended period of time, I agree with the Secretary’s argument that, 

for purpose of this unwarrantable failure analysis, “the violative act itself outweighs the short 

period of time between action and discovery.” Sec’y Br. 12. 

Mach argues that there was a good faith disagreement over the meaning of the 

termination of Order 8414238. Mach avers that Long testified that he was confused as to the 

terminations’ meaning. Moreover, Mach alleges that no MSHA representative ever told Mach 

that a citation would be issued if mining resumed in Headgate No. 3. However, Long did advise 

Mach that a citation would be issued if mining resumed, and he continued to discuss the matter 

for the entire time from September 9, 2009, when the termination order was issued by Jones, 

until September 21, 2009, when Long issued the order discussed herein. I agree with Long and 

find that, at best, the mine demonstrated a serious lack of reasonable care. I am not persuaded by 

Webb’s arguments and find them disingenuous given his background and his involvement in the 

plan approval process. I find that the violation was the result of an unwarrantable failure to 

comply and consequently assess a penalty of $5,000.00 for the violation. 

33 FMSHRC Page 1682
II. PENALTY 

The principles governing the authority of Commission administrative law judge to assess 

civil penalties de novo for violations of the Mine Act are well established. Section 110(I) of the 

Mine Act delegates to the Commission and its judges the authority to assess all civil penalties 

provided in [the] Act. 30 U.S.C. § 820(I). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that, in assessing civil monetary penalties, the Commission 

[ALJ] shall consider the 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 on the operator’s ability to continue in business, [5] the 

gravity of the violation, 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). 

I accept the parties’ stipulation that the penalty proposed is appropriate to this operator’s 

size and will not effect its ability to continue in business. The mine is a large operator and has 

an unusually large number of ventilation plan violations given its short operating time. I agree 

with Long that Mach demonstrated high negligence, and I find that the mine demonstrated a 

serious lack of reasonable care that bordered on intentional misconduct. Although the inspector 

designated the violation as non-S&S, I find that operating without an approved ventilation plan 

is a serious violation. I assess a penalty of $5,000.00 for Order No. 8414529. 

III. ORDER 

Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess the 

$5,000.00 penalty listed above for the subject order. Mach Mining, LLC, is hereby 

ORDERED to pay the Secretary of Labor the sum of $5,000.00 within 30 days of the date of 

this decision. The Notice of Contest is DISMISSED. 

_ /s/ Margaret A. Miller_____________ 

Margaret A. Miller 

Administrative Law Judge 

33 FMSHRC Page 1683
60604 

Distribution: (U.S. Certified Mail)
	

Edward V. Hartman, U.S. Department of Labor, 230 S. Dearborn St., Room 844, Chicago, IL
	

Christopher Pence, Allen Guthrie & Thomas, PLLC, 500 Lee Street, East, Suite 800, P.O. Box 

3394, Charleston, WV 25333-3394 

33 FMSHRC Page 1684
 

 

 

 

33 FMSHRC Page 1685

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

July 27, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA), : Docket No. WEST 2008-814 

Petitioner, : A.C. No. 05-04591-144842 

: 

v. : 

: Bowie No. 2 Mine 

BOWIE RESOURCES LLC, : 

Respondent. : 

DECISION 

Appearances: Matthew B. Finnigan, Esq, Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, 

 for Respondent. 

Before: Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Bowie 

Resources LLC, (“Bowie”) pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced 

testimony and documentary evidence at a hearing held in Grand Junction, Colorado, and filed 

post-hearing briefs. 

Bowie operates a large underground coal mine in Delta County, Colorado. The case 

involves one section 104(d)(2) order of withdrawal alleging a violation of 30 C.F.R. § 75.400. 

The Secretary contends that the order should be assessed as a flagrant violation under section 

110(b)(2) of the Mine Act and she proposes a penalty of $220,000. 

I. BACKGROUND 

On September 24, 2007, Inspector Brad Allen (“Allen”) issued Order No. 6684382 under 

section 104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows: 

Combustible materials in the form of very dry, loose coal, coal fines, float coal 

dust and bug dust were permitted to accumulate in the 1st East Mains active 

mining section #3 entry, crosscut 15 to 16. An area approximately sixty-six feet 

long by eighteen to twenty feet wide (the entire width of the entry) was observed 

where combustible materials had been allowed to accumulate on the mine floor 

ranging from approximately one inch to twelve inches deep. The area began 

approximately seventeen feet inby the centerline of crosscut number 15 and 
 

extended toward crosscut #16, #3 entry. Samples were collected to substantiate 

this violation. 

The dry float coal dust was easily suspended in the mine air when liberated. The 

accumulations provided substantial fuel to propagate a mine fire or explosion 

should one occur and such propagation would be reasonably likely to result in 

death or serious injury. This condition was extensive and obvious to anyone 

concerned with safety. Date, time and initials were present in the #3 to #4 entry, 

crosscut 15 at the energized power center located in close proximity that showed: 

09/24/07 SLM 3:20 a.m., and the on-shift record at the same location indicated 

09/24/07 SS 7:30 a.m. This condition creates a fire/explosion hazard. This mine 

liberated an average of 1,204,543 cubic feet per day of methane gas during the 

last year (and this number does not include methane liberated through de-gas 

boreholes used at this mine site.) Miners are required to frequently work or travel 

in the area throughout the shift. 

The mine operator has been cited for 75.400 sixty-one times since 10/18/2005 

(fifteen of which were issued to a contractor working for the mine operator). The 

mine operator was put on notice that greater efforts need to be made to address 

coal and other combustible material accumulations on 1/31/06. This notice was 

reiterated on 8/28/07 in the condition/practice portion of two citations issued on 

that day. There was no work observed to correct the accumulations of 

combustible materials. The section foreman was standing in the #3 area. The 

mine operator displayed a serious lack of reasonable care by continuing to mine 

coal while an accumulation of combustible material hazard existed. This 

violation is an unwarrantable failure to comply with a mandatory standard. 

The inspector determined that an injury was reasonably likely and that a fatal accident 

could occur. He further determined that the violation was of a significant and substantial nature 

(“S&S”) and the operator’s negligence was high. (Ex. G-2). Section 75.400, entitled 

“Accumulation of combustible materials” provides: 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein. 

30 C.F.R. § 75.400. The Secretary designated the alleged violation as “flagrant” and 

proposed a penalty of $220,000. 

33 FMSHRC Page 1686
 

                                                       

   

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Brief Summary of Testimony 

Inspector Allen testified that during his inspection on September 24, 2007, Ernal Shaw 

(“Shaw”), the safety manager, accompanied him. (Tr. 20). While conducting the inspection 

Allen observed “a lot of accumulation on the mine floor,” consisting of a windrow of black coal, 

coal dust, and bug dust that was “very dry.”1

 (Tr. 27). According to Allen, the ribs and roof, 

were adequately rock-dusted. (Tr. 28, 74). The inspector observed the accumulations between 

crosscuts 15 and 16 at the Bowie No. 2 Mine, 1st East Mains Section, Number 3 Entry. (Tr. 23, 

26; Ex. GX-6). Allen testified he took measurements of the accumulations as referenced within 

the order. (Tr. 29; Ex. GX-2). Allen also collected samples of the accumulations for testing, 

which determined that roughly between 69-77% of the material was highly combustible. (Tr. 31; 

Ex. GX-7). While collecting samples Allen visually observed that coal dust was easily 

suspended in the air when disturbed. (Tr. 31). Allen noted that no Bowie employees had been in 

the process of shoveling up the conditions while he was in the area. (Tr. 41). Based on the 

above information, Allen issued Order No. 6684382. Allen additionally testified that if he had 

seen employees rock-dusting the entry without cleaning up the accumulations, the order might 

have still been issued. 

In September of 2007, Bowie No. 2 Mine was on a five-day spot inspection cycle 

because the mine liberated an average of 1.2 million cubic feet of methane per day; liberation of 

1 million is the threshold for enhanced inspections. (Tr. 17-18). According to Allen, at the time 

of inspection, the record books showed a trace amount, two-tenths of one percent, of methane 

measured at the face, about 600 feet from the accumulations. (Tr. 21, 32, 35-36). Specifically, 

Allen testified that methane becomes combustible in the range of around 5 to 15 percent, but this 

percentage may be lower with the presence of float coal dust. (Tr. 21, 44). Allen noted several 

ignition sources in the area. A power center, without any visible defects, was located right 

around the corner, roughly 30 feet from the accumulation. (Tr. 35, 37, 50) There was a shuttle 

car nearby that had energized trailing cables, also without any visual defects. (Tr. 35, 37). 

Allen, however, testified that defects in trailing cables arise frequently. (Tr. 37). In addition, at 

the face of the mine, a continuous miner and roof bolter were in operation. (Tr. 36). Allen 

further testified that for an explosion to occur, a fuel source, either methane or coal dust, oxygen, 

and an ignition source must be present. (Tr. 40). At the time of the order, Allen testified that 

eight people were in the section, a few were operating the roof bolter at the face, Steve Shelton 

(“Shelton”) was at the power center, and a few others were performing other work. (Tr. 58). 

Allen also testified that he issued a termination order for the alleged violation the same 

day. (Tr. 66) He stated that it took around two hours and eight minutes for five to six miners to 

clean up the accumulations and rock-dust the mine floor, though he did not observe the clean up. 

(Tr. 66). Additionally, Allen testified that the miners applied about a pallet of rock dust, which 

is about 40-50 bags weighing 50 pounds each. (Tr. 68). Allen testified that he believed that a 

1 “Bug dust” is a form of coal dust that is larger than coal fines but smaller than loose coal. 

(Tr. 34). 

33 FMSHRC Page 1687
 

 

significant amount of material had to be cleaned up and it was one of the longer termination 

times that he had personally observed. (Tr. 69-70). 

Allen determined that the violation was reasonably likely to result in a fatal injury due to 

the significant amount of accumulations in the crosscut. (Tr. 42). He reasoned that a fire could 

occur causing a significant amount of smoke, disorienting and trapping miners, or an explosion 

could occur causing a concussion, resulting in blunt force trauma to miners. (Tr. 42-43). 

Additionally, Allen designated the violation to be a result of the operator’s high negligence 

because Shelton, the section supervisor, was standing around the corner of an open and obvious 

safety condition. (Tr. 49). 

Allen further determined that the violation was S&S due to the likelihood for a serious 

injury to result from the condition. (Tr. 58). He reasoned that the “accumulations provided 

substantial fuel to cause a serious injury.” (Tr. 59). The violation was also determined to be an 

unwarrantable failure by Allen because of the operator’s negligent conduct. (Tr. 59). Allen 

reasoned that negligent conduct was present due to Shelton’s standing at the “obvious” hazard 

location with no perceived effort to eliminate the condition. (Tr. 59-60). Additionally, Bowie 

continued to mine coal instead of correcting the hazard. (Tr. 59). Moreover, Allen testified that 

Bowie had a history of violations and was put on notice for heightened awareness. (Tr. 59). 

Finally, Allen also determined, after he left the mine, that the order should also be appropriately 

classified as a flagrant violation. (Tr. 63, 66). Allen reasoned that Bowie had previously been 

issued 61 citations and orders and had been put on notice to address the repeated section 75.400 

violations. (Tr. 64). Furthermore, Allen testified that the severity levels of the citations were 

increasing in the months preceding the order at issue. (Tr. 64). 

Allen, on cross-examination, stated that he personally has never investigated a face 

ignition or shuttle car trailing cable fire at Bowie No. 2 mine and has not studied reports on face 

ignitions. (Tr. 75, 98). Allen additionally agreed that section 75.400 is a broad standard that 

includes accumulations of a wide range of materials. (Tr. 78). Allen testified, that section 

75.400 is the most frequently cited underground coal mine standard. (Tr. 82). 

Shelton, a section supervisor for Bowie, testified that he had observed the crosscut 

referenced in the citation and determined it needed to be rock-dusted. (Tr. 125). Before going 

underground, Shelton was told that a new stopping was built by the prior shift in the Number 3 

Entry of the 1st East Mains. (Tr. 113-14). Shelton stated that during his onshift exam he found 

methane, up to four-tenths of one percent, located at various high spots along the 1st East Mains. 

(Tr. 119-20; Ex. GX-12). Additionally, Shelton noticed during his onshift that the Number 3 

Entry needed rock-dusting between crosscuts 15 and 16 and spoke with Blake Kinser (“Kinser”) 

about bringing a pallet of rock dust after restocking the roof bolter. (Tr. 121, 125-26; Ex. G-11). 

Shelton then went back to the power center to prevent any miners from entering the affected 

area. He was at the power center when Inspector Allen and Shaw approached the area. (Tr. 

127). Shelton testified that the area was not dangerous, reasoning that there were no ignition 

sources in the area and nobody was traveling in the area. (Tr. 123). On cross-examination, 

Shelton testified that the termination order took two hours and eight minutes because the crew 

had to shut down and back out the mining equipment at the face, gather shovels and bring water 

down to the area, unload the bolting materials that were in the bucket of the loader, shovel and 

33 FMSHRC Page 1688
 

 

 

 

 

 

haul the accumulations out of the area, and finally spread rock dust. (Tr. 147). The bucket, 

measuring eight to ten feet wide by two feet high and four feet deep was full but not “heaped 

over” with the accumulations that were removed, according to Shelton. (Tr. 152-53, 155). 

Kinser, a utility person for Bowie, testified that before the order was issued, Shelton had 

asked him to get a pallet of rock dust after he restocked the roof bolter. (Tr. 160). Kinser stated 

that he saw “some” material on the floor and “rib sloughage.” (Tr. 158, 161). Kinser also 

testified that it took two hours and eight minutes to completely abate the order. (Tr. 157). This 

work included notification of the issuance of the order, emptying bolter supplies from the scoop 

bucket, watering down the area, shoveling the accumulations, and rock-dusting by hand. (Tr. 

162-63, 167). 

Shaw testified that float dust has to be suspended in air for it to be considered an 

explosive concentration and the quantity needs to be around 2.4 pounds per cubic yard. (Tr. 

180). Such a concentration is so thick that there would be limited visibility and the air would be 

unbreathable. (Tr. 180). Shaw stated that miners did not finish cleaning up after installing the 

stopping during the previous shift. (Tr. 182). He reasoned that most of the material on the floor 

came from the construction of the stopping. (Tr. 182). Additionally, Shaw testified that the 

potential for a face ignition to propagate back to the crosscut was “completely unlikely,” due to 

the fact that everything in between was well rock-dusted. (Tr. 182-83). Shaw also stated that the 

power center was not reasonably likely to catch on fire. (Tr. 188). Regarding the termination 

order, Shaw testified that the quantity of accumulations cleaned up were more then he would like 

to see, but “not extreme” in nature. (Tr. 190). 

B. Violation of § 75.400 

The parties present opposing views of the evidence in this case. Bowie first argues that 

no violation of section 75.400 occurred. Bowie reasons that some spillage is permissible because 

of mining’s inherent nature and the record establishes that the stopping line was built during the 

previous shift and materials from this construction were still in the entry. Additionally, Bowie 

argues that some of the material was located along the rib and should be considered rib 

sloughage; therefore, removal is not required because the rib may be destabilized and rockdusting is permitted in lieu of cleaning up the coal. 

The Secretary responds that Allen properly issued the order to Bowie because the 

evidence presented at trial established that combustible materials were permitted to accumulate, 

in violation of section 75.400. The Secretary reasons Bowie did not produce any evidence to 

refute this proof. Bowie’s employees confirmed the violation by admitting to the accumulations 

and testifying that a 64-cubic-foot scoop bucket was filled with the accumulations. 

It is important to understand that Kennedy stoppings were recently installed across the 

entries of the 1st East Mains because Bowie was developing rooms to be connected to the 2nd 

East Mains for the next set of longwall panels. (Ex. G-5). Thus, the continuous miner was 

developing what essentially were entries to the left of the 1st East Mains. (Ex. G-6). These 

“entries” had been developed a distance of about 600 feet from the No. 3 entry of the 1st East 

Mains at the time Inspector Allen issued the order. The intake air made a 90-degree left turn to 

33 FMSHRC Page 1689
 

 

 

 

 

ventilate the working face. Thus, the part of the No. 3 entry between Crosscuts 15 and 16 

containing the accumulation functioned as a crosscut in relation to the area of active mining. 

(Ex. G-6). 

I credit the testimony of Bowie’s witnesses that the stopping across the No. 3 Entry had 

been built during the previous shift. The stopping was installed in the entry just outby crosscut 

16. Thus, a miner could no longer pass through the No. 3 Entry between the Nos. 15 and 16 

crosscuts because the stopping blocked such passage. Before the subject stopping was installed, 

the cited area of the entry was used as a roadway for shuttle cars and other vehicles. 

When a Kennedy stopping is installed, the ribs, roof, and floor of the mine are cleaned up 

where the stopping will be installed to make the area as smooth as possible so that the seal 

around the stopping will be tight and there will not be any gaps after the foam sealant is applied. 

Accumulations of coal and coal dust are created in the process. Once the stopping is installed, 

the crew typically cleans up the area, removes any leftover supplies, and applies rock dust. I 

credit the testimony of Bowie’s witnesses that the previous shift ended before the crew could 

perform these cleaning activities. As a consequence, when Shelton arrived at the beginning of 

his shift he saw the accumulations that had been created between the Nos. 15 and 16 crosscuts in 

the No. 3 Entry when the stopping was installed, he observed supplies that had been left in the 

entry near the stopping, and he saw that the floor of the entry had not been rock-dusted. 

For the reasons set forth below, I find that the Secretary established a violation of section 

75.400. Section 75.400 states that “combustible materials shall be cleaned up and not be 

permitted to accumulate in active workings.” “[T]he language of the standard makes 

accumulations impermissible.” Old Ben Coal Co., 1 FMSHRC 1954, 1957 (Dec. 1979). The 

Commission held that “a violation of . . . 30 C.F.R. § 75.400 occurs when an accumulation of 

combustible materials exists.” Id. at 1958 (emphasis added). The Commission recognized that 

“some spillage of combustible materials may be inevitable in mining operations;” however, the 

size and amount of spillage determines whether spillage will constitute accumulations. Id. 

Accumulations were further defined by the Commission to “exist where the quantity of 

combustible materials is such that, in the judgment of the authorized representative of the 

Secretary, it likely could cause or propagate a fire or explosion if an ignition source were 

present.” Old Ben Coal Co.. 2 FMSHRC 2806, 2808 (Oct. 1980). “There is no bright line 

between acceptable accumulations of combustible materials and accumulations that violate 

section 75.400.” Mountain Coal Company, 26 FMSHRC 853, 861 (Nov. 2004). The issue is 

“whether a reasonably prudent person, familiar with the mining industry and the protective 

purpose of the standard, would have recognized the hazardous condition that the safety standard 

seeks to prevent.” Id. 

I credit the evidence presented by Inspector Allen as to the accumulations he observed. 

Allen measured the accumulations to be about 66 feet long, around 18 feet wide, and between 8 

and 12 inches deep in some places, which Bowie did not refute. (Tr. 29, 123). I also credit the 

testimony of Shelton and Kinser, who testified that the accumulations filled a scoop bucket 

approximately 8 to 10 feet wide, 2 feet high, and 4 feet deep, though the accumulations did not 

“heave over” or “overflow” the bucket. (Tr. 139, 152-153, 161). I find that the volume of 

material cleaned up from the hazard is significant. The accumulations that were cleaned up 

included rib sloughage. Furthermore, testing of the accumulations revealed that the samples 

33 FMSHRC Page 1690
 

were above the allowable limit of 60% combustible material. (Tr. 154). I find that a reasonably 

prudent person, familiar with the mining industry and the protective purpose of the standard, 

would have recognized the hazardous condition that the safety standard seeks to prevent. On that 

basis, I find that the Secretary established a violation of section 75.400. 

C. Significant and Substantial 

Bowie further argues that the S&S designation was improper because there was no 

reasonable likelihood of injury resulting from the violation. Specifically, Bowie is challenging 

the third element of the Mathies test, which states “a reasonable likelihood that the hazard 

contributed to will result in an injury.” (Bowie Br. 10). Bowie relies on the facts that the 

condition was about to be corrected that morning, the propagation of an explosion was unlikely, 

and Shaw was standing in the area restricting access to miners. Bowie contends that finding a 

fire or explosion “could occur” is not sufficient for finding that such a result is reasonably likely 

to occur. 

The Secretary argues that Allen, using his 14-year experience, properly considered both 

the mine’s characteristics and Bowie’s conduct when designating the violation as S&S. The 

Secretary reasons that underground mining is inherently dangerous and Allen properly detailed a 

variety of hazards that were reasonably likely to occur. 

Bowie first attacks the Secretary’s conclusion that a fire or explosion at the face was 

reasonably likely to occur. On September 24, 2007, there were no elevated methane levels at the 

face. (Bowie Br. 10). Furthermore, there have been no face ignitions at Bowie because of good 

mining practices and the presence of a coal floor within the mine, rather then a floor containing 

quartz-bearing rock. (Bowie Br. 11). Bowie reasons that an ignition at the face is unlikely due 

to these conditions. Bowie argues that even if a face ignition of methane were to occur, it would 

not propagate back to the accumulations 600 feet from the mine face because the entries between 

were properly rock-dusted. (Bowie Br. 13). On the other hand, the Secretary contents that 

Bowie No. 2 is a “gassy mine” in which methane is capable of accumulating quickly. (Sec’y Br. 

20). Bowie was actively mining at the face, and face ignitions are an inherent danger in coal 

mining. (Sec’y Br. 21-22). With methane able to accumulate quickly and the possibility of a 

face ignition, the Secretary argues that the possible resulting explosion would result in placing 

the float coal dust into suspension further propagating the explosion. (Sec’y Br. 20-21). 

Additionally, the Secretary notes that Bowie has had to cease production eight or nine times due 

to dangerous methane levels, though this occurred in a different coal seam. (Sec’y Br. 21). 

Bowie additionally attacks the Secretary’s conclusions that other ignition sources, 

separate from the face, existed and were reasonably likely to cause an explosion. Bowie notes 

that there is no evidence that the power center was defective or that the trailing cables attached to 

the power center were defective. The cables were encased in thick insulation. (Bowie Br. 12). 

The Secretary argues that electrical equipment can serve as an ignition source without any 

apparent defects. (Sec’y Br. 21). Trailing cables, additionally, are prone to defects that arise 

quickly because of the nature of shuttle car driving. (Sec’y Br. 23). Bowie also refutes the 

Secretary’s claim that bumps or bounces could serve as an ignition source. Bowie notes that 

Shaw testified that no bounces had occurred at the mine prior to the contested order and, if the 

33 FMSHRC Page 1691
 

roof does fail in a bounce, it is unlikely to ignite methane. (Bowie Br. 13). The Secretary 

contends that bounces can disrupt ventilation and production, increasing the likelihood of an 

explosion. (Sec’y Br. 23-24). 

An S&S violation is described in section 104(d)(1) of the Act as a violation “of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 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 of illness or a reasonably serious nature.” 

Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has 

explained that: 

[i]n order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety – contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

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

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula “requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104(d)(1), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6 

FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

I find that the Secretary did not establish that the violation was S&S. The Secretary 

established the first, second, and fourth element of the Mathies test. I find, however, that it was 

not reasonably likely that the cited accumulations contributed to a hazard that would result in an 

injury, the third element of the Mathies test. Oxygen and a fuel source were present in the cited 

33 FMSHRC Page 1692
 

entry. Inspector Allen testified that a fire or explosion with resulting injuries, including fatal 

injuries, could occur due to several possible ignition sources within the area of the 

accumulations. I agree that such an accident could occur, but it was not established that it was 

reasonably likely to occur. I credit the testimony of Bowie’s witnesses that Shelton recognized 

the potential hazard when he arrived on the section, took steps to have rock dust delivered to the 

entry, and remained in the area to keep miners out of the entry. 

The Commission provided the following guidance for accumulation violations: 

When evaluating the reasonable likelihood of a fire, ignition, or explosion, 

the Commission has examined whether a “confluence of factors” was 

present based on the particular facts surrounding the violation. Texasgulf, 

Inc., 10 FMSHRC 498, 501 (April 1988). Some of the factors include the 

extent of the accumulations, possible ignition sources, the presence of 

methane, and the type of equipment in the area. Utah Power & Light Co., 

12 FMSHRC 965, 970-71 (May 1990). 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). 

Although about a full scoop of accumulations was removed, the accumulations were 

confined to one area between two crosscuts. Some of the accumulations were rib sloughage and 

some were from the construction of the stopping during the previous shift. The area had been a 

roadway prior to the construction of the stopping so accumulations in the area may well have 

been ground down by the traffic and pushed to the side in windrows. As stated above, I find that 

it was unlikely that the accumulations would have been ignited by any of the potential ignition 

sources identified by Inspector Allen. The mine does not have a history of face ignitions 

because, in part, the mine floor is made of coal. While a face ignition was possible, it was 

unlikely that such an ignition would propagate an explosion of the cited accumulations because 

the areas between the face and the accumulations were fully rock-dusted. The power center 

located near the accumulations showed no signs of defects and there is no evidence that it was no 

longer in permissible condition. There was no evidence that the trailing cables attached to the 

power center were defective. Assuming continued mining operations, the accumulations would 

have been fully rock-dusted and rendered incombustible within a few hours. It is unlikely that 

any of these potential ignition sources could spark a fire or propagate an explosion. 

I credit the inspector’s testimony noting that active mining at the face of a gassy mine 

along with bumps and bounces can serve as an ignition source that suspends accumulations 

further outby. I find that such an event was unlikely given the history of this mine and the 

remedial actions being taken by the operator. Although methane can develop quickly in a gassy 

mine, this mine has no history of methane rapidly accumulating over a large area. I find that 

there was not a confluence of factors present that made a fire or ignition reasonably likely. 

I contrast the facts of this case with the facts set forth in my decision in Twentymile Coal 

Co., 32 FMSHRC 1431 (Oct. 2010) (Pet. for disc. rev. granted by Comm., Nov. 24, 2011). In 

that case, float coal dust had been allowed to accumulate along a belt line for a distance of about 

3,400 feet. Float coal dust was present along the belt entry, on the ribs, roof, and floor, on the 

33 FMSHRC Page 1693
 

belt structure, pipes and hoses, and electrical control boxes. Id. at 1439. No action had been 

initiated to rock-dust the area and I determined that the float coal dust had accumulated over 

several shifts. Id. at 1447. The Secretary cites that case to support the inspector’s S&S 

determination in the present case. Under the facts of the present case, however, the 

accumulations were a combination of rib sloughage and coal material that had been left in the 

area at the end of the previous shift following the installation of a stopping. Moreover, Bowie 

was in the process of mitigating the hazard. Although the Secretary presents a number of 

catastrophic events that could occur at the Bowie Mine, invoking the disasters at the Sago and 

Upper Big Branch Mines, I find that the facts presented at the hearing demonstrate that such 

catastrophic events were highly unlikely and that this case has little in common with the facts 

that led to those disasters or with the facts presented in Twentymile. 

I recognize that the Commission has held that the opinion of an experienced MSHA 

inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 

20 FMSHRC 175, 178-79 (Dec. 1998); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 

135-36 (7th Cir. 1995). I reach my conclusion that the violation was not S&S after careful 

consideration of the evidence of record and continuing mining operations. 

D. Unwarrantable Failure 

Additionally, Bowie argues that the violation was not the result of an unwarrantable 

failure because no aggravated conduct was present. Bowie contends that Allen failed to take into 

consideration Shelton’s actions to address the accumulations. (Bowie Br. 17). Moreover, the 

condition had only existed for a short period of time. (Bowie Br. 17). Bowie also contests the 

finding of unwarrantable failure based on prior section 75.400 violations the mine had received. 

Bowie argues that for it to be on notice based on past violations, the past violations must be 

similar to the current violation. (Bowie Br. 18). Furthermore, Bowie argues that it had taken 

steps to address section 75.400 violations. (Bowie Br. 19-20). Both Shelton and Shaw testified 

that they had discussed accumulations with miners during preshift and safety meetings. 

The Secretary contends that the violation of section 75.400 was an unwarrantable failure 

because Bowie’s conduct is considered aggravated as defined by Lopke Quarries. (Sec’y Br. 27-

28). First, the Secretary argues that the accumulations existed for at least a shift and Bowie had 

previously received repeated warnings regarding accumulations of combustible materials. 

(Sec’y Br. 28). Second, the accumulations were extensive because of the volume cleaned up and 

the time it took to finish the termination order. (Sec’y Br. 28-29). Third, the accumulations 

were “open and obvious” according to Allen. (Sec’y Br. 29). The Secretary argues that while 

accumulations are not uncommon in underground coal mining, accumulations are dangerous, but 

easily remedied, and Bowie favored coal production, ignoring the accumulations. (Sec’y Br. 29). 

Fourth, prior section 75.400 violations, 46 citations and orders with 15 designated S&S in the 

two years prior, put Bowie on notice for greater efforts to comply. (Sec’y Br. 30). Allen 

personally discussed his concerns about accumulations with Shaw prior to the issuance of the 

subject order. (Sec’y Br. 30-31). Additionally, in the weeks preceding Order No. 6684382 

Bowie was issued two unwarrantable failure orders. Finally, the Secretary argues that Bowie 

made no effort to abate the accumulations, the accumulations posed a high danger, and Bowie 

was aware of the accumulations. (Sec’y Br. 32-33). 

33 FMSHRC Page 1694
 

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission restated the 

law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 

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

with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the 

Commission determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” 

“indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester 

& Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek 

Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving 

Commission’s unwarrantable failure test). 

Whether conduct is “aggravated” in the context of an unwarrantable failure 

analysis is determined by looking at all the facts and circumstances of each case 

to see if any aggravating factors exist, such as the length of time that the violation 

has existed, the extent of the violative condition, whether the operator has been 

placed on notice that greater efforts are necessary for compliance, the operator’s 

efforts in abating the violative condition, whether the violation is obvious or poses 

a high degree of danger, and the operator’s knowledge of the existence of the 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); 

Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other 

grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 

34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, 

Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 

FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of 

each case must be examined to determine if an actor’s conduct is aggravated, or 

whether mitigating circumstances exist. Consol., 22 FMSHRC at 353. Because 

supervisors are held to a high standard of care, another important factor 

supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998). 

I find that the Secretary did not establish that the violation was the result of Bowie’s 

unwarrantable failure to comply with the safety standard. Its conduct was not aggravated. I 

credit testimony from both Shelton and Kinser that Shelton was aware of the condition and was 

taking steps to remedy the situation before Inspector Allen arrived. The accumulations cited in 

the violation were primarily from the construction of a stopping during the previous shift and 

from rib sloughage. Shelton noticed the accumulations during his onshift examination and asked 

Kinser to bring a pallet of rock dust to the entry. It is not entirely clear how long the 

accumulations had been present. The accumulations created by the installation of the stopping 

had existed only since the end of the previous shift. The rib sloughage may have been present 

longer but there is no reliable evidence on that issue. The accumulations were present in a 

discrete area between Crosscuts 15 and 16. 

33 FMSHRC Page 1695
 

 

 

Bowie was on notice that greater efforts were necessary to comply with the safety 

standard; however, Shelton demonstrated his efforts to address this particular violation. Shelton 

requested another miner’s assistance and stood outside the accumulations to ensure no one would 

enter before the accumulations were addressed. Bowie’s employees did not disregard the 

accumulations and Shelton was taking the actions he believed to be reasonable. Given the 

volume of accumulations present, a better course of action may have been for Shelton to bring in 

the scoop to remove at least some of the accumulations from the mine. Nevertheless, Bowie was 

in the process of making reasonable efforts to address the hazard. The accumulations would not 

have remained in the same state for much longer. In sum, the record establishes that Bowie was 

aware of the condition and was taking steps to neutralize the hazard. The company’s conduct did 

not amount to “reckless disregard,” “intentional misconduct,” “indifference,” or even a “serious 

lack of reasonable care.” I find that Bowie’s actions did not amount to aggravated conduct and 

the order is modified to a section 104(a) citation. 

E. Flagrant 

Finally, Bowie argues that the Secretary failed to establish that the violation should be 

deemed to be flagrant. Section 110(b)(2) of the Mine Act sets forth the parameters for 

concluding that a violation is flagrant and provides for the assessment of enhanced civil 

penalties: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2). 

In Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011), Commission Judge Alan Paez 

addressed the issue of flagrant violations. He held that section 110(b)(2) is ambiguous because 

neither the statutory language nor the legislative history set forth a clear statement of 

Congressional intent. Id. at 801. I agree with the analysis of Judge Paez on this issue and 

incorporate his discussion in section III A. through III C. by reference. 33 FMSHRC 798-802. 

As a consequence, under Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 

(1984), interpretation of the statute is reserved for the courts. In Stillhouse Mining, Judge Paez 

held that to establish a flagrant violation, the Secretary must prove four elements: (1) reckless or 

repeated failure to make reasonable efforts to eliminate, (2) a known violation of a mandatory 

health or safety standard, (3) that substantially and proximately cause or reasonably could have 

been expected to cause, (4) death or serious bodily injury. I agree with Judge Paez’s analysis. 

One of Bowie’s principal arguments in the present case was not presented to Judge Paez 

in Stillhouse Mining. Bowie maintains that a penalty for a flagrant violation may only be 

assessed when an operator fails to correct a previously cited violation. (Bowie Br. 22). Bowie 

contends that the phrase in section 110(b)(2), “[v]iolations under this section,” refers specifically 

33 FMSHRC Page 1696
 

 

                                                       

   

to section 110(b)(1). Therefore, “a violation cannot be deemed to be flagrant until a citation has 

been issued and the operator has failed, either recklessly or repeatedly, to make reasonable 

efforts to eliminate the violation for which the citation was issued.” (Bowie Br. 23). Thus, 

flagrant violations are limited to situations in which an operator fails to abate a condition for 

which a citation has already been issued under section 104(a) of the Mine Act. Bowie further 

reasons that the language of the statute is clear and the court should apply the plain meaning of 

the statutory language. (Bowie Br. 23). Its argument is based in large part on the placement of 

the flagrant violation provision within section 110(b) of the Mine Act. 

Because Bowie’s position was described in detail for the first time in its brief, the 

Secretary did not directly address this precise issue in her simultaneously filed brief. The 

Secretary maintains that she is not required to demonstrate that the operator repeatedly failed to 

eliminate a violation that occurred in the same location. (Sec’y Br. 10-11). She argues that 

nothing in section 110(b)(2) establishes such a limitation and that, if adopted, such a limitation 

would severely limit the application of the statutory provision. 

I reject Bowie’s argument on this issue. The language of section 110(b) is not an 

example of the clearest legislative drafting. However, it cannot be reasonably interpreted to 

mean that the failure to correct a cited condition within the time limits set forth in a citation is a 

prerequisite to a finding that the violation is flagrant. Congress passed the Mine Improvement 

and New Emergency Response Act of 2006 (“MINER Act”) amending the Mine Act as a 

response to the high number of mining fatalities that occurred in the early part of 2006. S. Rep. 

No. 109-365, at 2 (2006). The broad purpose of the MINER Act was stated as “further[ing] the 

goals set out in the [Mine Act] and to enhance worker safety.” Id. at 1. To accomplish this 

purpose Congress intended to “improve safety-related procedures and protocols and increase 

enforcement and compliance to improve mine safety.” Id. Congress, by adding a flagrant 

designation, is increasing civil penalties for safety violations to serve as a deterrent for habitually 

neglecting worker safety. Limiting the scope of section 110(b)(2), as proposed by Bowie, would 

frustrate the main purpose expressed by Congress to enhance worker safety. Section 110(b)(1) 

already provides an incentive for operators to abate citations within the time permitted by the 

MSHA inspector. It currently mandates a penalty of $7,500 each day that an operator fails to 

correct a violation for which a citation has been issued under section 104(a) of the Mine Act. 

There is a built-in incentive for an operator to rapidly abate a withdrawal order because mining 

operations cannot resume until the cited condition is abated. There is no indication in the statute 

or the legislative history that Congress intended to add a second financial incentive for operators 

to rapidly abate cited conditions. I conclude that operator’s failure to correct a violation under 

subsection 110(b)(1) is not a prerequisite to the establishment of a flagrant violation.2 

Bowie argues that, even if the court rejects its argument that section 110(b)(2) only 

covers a failure to correct cited conditions, the company’s actions do not otherwise meet the 

requirements necessary to establish a flagrant violation. (Bowie Br. 29). Bowie reasons that 

Shelton was already in the process of addressing the condition before the order was issued and, 

2 Judge Paez reached the same conclusion on a related issue raised in Stillhouse. He concluded 

that the “known violation” at issue in a flagrant case need not have been previously cited by 

MSHA. 33 FMSHRC at 807. 

33 FMSHRC Page 1697
 

  

 

 

because the condition resulted from the construction of a stopping during the previous shift, his 

actions were neither reckless nor repeated. (Bowie Br. 30). 

The Secretary contends that Bowie violated each of the five elements contained in the 

statutory definition of flagrant. (Sec’y Br. 4). First, Bowie repeatedly failed to comply with 

section 75.400 with 46 violations in the previous fifteen months leading up to Order No. 

6684382. (Sec’y Br. 5-6). Second, Bowie did not make reasonable efforts to eliminate coal 

accumulations because of the continued disregard for accumulations after numerous violations. 

(Sec’y Br. 7). Third, Bowie knew of the accumulations citied because coal accumulations are 

inherent to mining and the safety director would address accumulations on “almost a daily” 

basis. (Sec’y Br. 8). Fourth, section 75.400 is a mandatory health or safety standard. Id. 

Finally, the violation of section 75.400 could have reasonably been expected to cause death or 

serious bodily injury. Id. The Secretary reasons that the accumulations were significant enough 

to cause an explosion or fire leading to serious miner injuries. (Sec’y Br. 8-9). 

In Stillhouse Mining, the parties agreed that the alleged violations were isolated incidents, 

as opposed to repeated occurrences of similar past conduct. 33 FMSHRC at 802-03. In the 

present case, the issue is whether Bowie repeatedly failed to make reasonable efforts to eliminate 

a known violation of a safety standard. Nevertheless, the discussion in Stillhouse Mining is 

helpful. Judge Paez found that “‘reckless or repeated failure to make reasonable efforts to 

eliminate a known violation of a mandatory health or safety standard’ occurs when, in light of all 

the facts and circumstances surrounding the violation, the operator does not take the steps a 

reasonably prudent operator would have taken to eliminate the known violation of a mandatory 

health or safety standard and consciously or deliberately disregards an unjustifiable, reasonably 

likely risk of death or serious bodily injury.” Id. at 805. Judge Paez, however, did not address 

how the phrase “repeated failure” should be interpreted in this context. 

The Secretary argues that the evidence demonstrates that Bowie has repeatedly violated 

section 75.400. She argues that, using the plain meaning of the term “repeated,” there can be no 

dispute that Bowie’s 46 violations of section 75.400 constitutes a repeated failure to comply with 

the standard. The Secretary maintains that loose coal, coal dust, and float coal dust cited in this 

case are the most common form of accumulations prohibited by section 75.400. Although other 

combustible materials may accumulate in a mine, the approach to cleaning them up does not 

vary. “Given the substantial similarity between the violation detailed in Order No. 6684382 and 

the forty-six violations of section 75.400 in the prior fifteen months . . . , Bowie’s failure to 

comply with section 75.400 was unquestionably a ‘repeated failure.’ ” (Sec’y Br. 6). 

Bowie approaches the question from a different perspective. It maintains that the court 

must look at the conduct of the operator with respect to the violation at issue when determining 

whether there was a repeated failure to correct a condition. It asserts that the facts in this case 

establish that Shelton, when he arrived on the section, “made the determination, supported by 

MSHA policy, to rock-dust the rib sloughage crosscut 15 to 16 in the Number 3 Entry .” (Bowie 

Br. 30). He was in the process of addressing this before Inspector Allen arrived. “For that very 

reason, there was no reckless or repeated failure to correct a known violation.” Id. The 

accumulation resulted, in part, from the building of a stopping during the previous shift. Bowie’s 

33 FMSHRC Page 1698
 

                                                       

   

  

  

conduct did not rise to a repeated failure to make reasonable efforts to eliminate a known 

violation of a mandatory safety standard. 

The difficulty in grappling with this issue in the manner suggested by the Secretary is that 

section 75.400 is the most frequently cited safety standard in underground coal mines. It can be 

stated that every underground coal mine has repeatedly been issued citations and orders for 

violations of section 75.400. As a large underground coal mine, it is not surprising that the 

Bowie Mine had been issued many citations and orders for such violations in the 15 months 

before September 27, 2007. In addition, section 75.400 covers a wide range of situations 

including, but not limited to, accumulations of trash on a section, accumulations of hydraulic oil 

on equipment, accumulations of coal debris on equipment, as well as the accumulations of coal, 

coal dust, and float coal dust along an entry or in a crosscut. I believe that the Secretary cannot 

establish the “repeated failure” element in section 110(b)(2) by simply introducing a computer 

printout showing that there have been multiple violations of the cited safety standard at the mine. 

Such statistics do not establish that the mine operator has repeatedly failed to make reasonable 

efforts to eliminate a known violation. 

The Secretary also relies on the fact that Bowie received two 104(d) orders for violating 

section 75.400 in the seven weeks before September 24, 2007. 3 (Exs. G-15, G-16). Order No. 

6684367, August 29, 2007, was issued for allowing hydraulic oil mixed with coal to accumulate 

on a roof bolting machine. (Ex. G-15). Order No. 6684274, August 8, 2007, was issued for float 

coal dust on the floor, roof, ribs, and belt structure along a belt line and for other conditions. 

(Ex. G-16). The Secretary contends that the seriousness of section 75.400 violations had been 

increasing in the months prior to September 2007. Shelton testified that Bowie had taken steps 

to address these problems. He said that he regularly discussed citations and orders issued for 

violations of section 75.400 with his crew and he regularly told his crew that it is important to 

avoid accumulations of combustible materials. (Tr. 142-43, 186-87). 

3 The parties stipulated that the Secretary based her flagrant designation “on the policy set forth 

in Procedure Instruction Letters I06-III-04 and I08-III-02.” (Stip. 7). The stipulation goes on to 

state that such “designation is based on such policy as it relates to ‘repeated’ unwarrantable 

failure violations of the same standard.” In pertinent part, the letters provide that, for violations 

that are the result of “repeated failure” to make reasonable efforts to eliminate a known violation, 

the Secretary may rely on the fact that “[a]t least two prior ‘unwarrantable failure’ violations of 

the same safety or health standard have been cited within the past 15 months.” The stipulation 

provides that Bowie “is not stipulating to the validity of such designation as flagrant or the 

validity of using such Procedure Instruction Letters as a basis of a flagrant designation.” For the 

reasons set forth below, I have not relied on these letters in this decision. 

33 FMSHRC Page 1699
                                                       

 

Although there may be circumstances in which an increasing history of S&S and 

unwarrantable violations of section 74.400 would be sufficient to establish a “repeated failure to 

make reasonable efforts to eliminate a known violation” of the safety standard, resolving this 

issue is not necessary to determine whether a flagrant penalty should be assessed in this case.4 

I find that the Secretary did not establish that the violation at issue in this case reasonably 

could have been expected to cause death or serious bodily injury. Judge Paez framed the issue as 

follows: “Based on the plain meaning of the statute’s terms, for the purpose of establishing a 

flagrant violation, an operator’s conduct ‘reasonably could have been expected to cause death or 

serious bodily injury’ when, based on all of the facts and circumstances surrounding the 

operator’s reckless failure to make reasonable efforts to eliminate a known violation of a 

mandatory health or safety standard, the operator’s conduct was likely to bring about death or 

serious bodily injury.” 33 FMSHRC 808. I find that the operator’s conduct in this case was not 

likely to bring about death or serious bodily injury to miners working at the mine. My analysis 

on this issue is similar to, but not necessarily the same as, the S&S analysis. I agree with Judge 

Paez that the risk of death or injury need not be immediate or imminent. Id. at 815-16.5 The 

issue is whether the cited condition created an environment that made death or serious injury 

likely. Id. For the reasons discussed above, I find that Bowie’s conduct was unlikely to bring 

about death or serious bodily injury. As a consequence, the Secretary’s flagrant determination is 

vacated. 

F. Gravity and Negligence 

I find that the evidence establishes that the conditions cited in the order created a serious 

violation of section 75.400. Although an injury or illness was not reasonably likely, if an 

accident were to occur, serious injuries or fatalities could result. The eight miners on the section 

could have been affected. 

I find that Bowie’s negligence was moderate. Although Bowie was taking steps to 

address the hazard, it could have done more. For example, Shelton could have assigned several 

crew members to remove and/or rock-dust the accumulations before other mining operations 

commenced. 

4 Indeed, any conclusion of law that I might reach on this rather complex issue of first impression 

would be obiter dictum. If this case is reviewed by the Commission and this issue is remanded 

to me for decision, I would then have the benefit of the Commission’s ruling on the myriad legal 

issues that are lurking in section 110(b)(2), which will help direct a resolution. 

5 In Stillhouse, Judge Paez determined that citation and orders at issue in that case were S&S. 

33 FMSHRC Page 1700
 

      

                                                       

   

III. APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have reviewed the Assessed Violation History Reports. (Ex. G-1). 

Bowie had about 382 paid violations at the Bowie No. 2 Mine during the 24 months preceding 

September 24, 2007. It was issued about 132 S&S violations during this same period. Bowie is 

a large mine operator. The violation was abated in good faith. The penalties assessed in this 

decision will not have an adverse effect on Bowie’s ability to continue in business. The gravity 

and negligence findings are discussed above. Based on the criteria in section 110(i) of the Mine 

Act, I find that a penalty of $10,000.00 is appropriate for this violation. 

IV. ORDER 

For the reasons set forth above, Order No. 6684382 is MODIFIED to a section 104(a) 

non-significant and substantial citation with moderate negligence. The flagrant penalty 

allegation brought by the Secretary under section 110(b)(2) of the Mine Act is VACATED. 

Bowie Resources, LLC, is ORDERED TO PAY the Secretary of Labor the sum of $10,000 

within 40 days of the date of this decision.6 

_/s/ Richard W. Manning ______________ 

Richard W. Manning 

 Administrative Law Judge 

Distribution: 

Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 (Certified Mail) 

R. Henry Moore, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 (Certified mail) 

RWM 

6 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 

33 FMSHRC Page 1701
 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, NW, SUITE 9500 

WASHINGTON, DC 20001 

July 28, 2011 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

LIGGETT MINING, LLC, 

Respondent. 

: 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

PENALTY PROCEEDINGS

Docket No. KENT 2008-1533 

A.C. No. 15-18854-160414

Mine: Liggett No. 3 

Docket No. KENT 2008-1534 

A.C. No. 15-19080-160415 

Mine: Liggett No. 5 

DECISION 

Appearances: Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 

 Nashville, Tennessee, on behalf of the Secretary of Labor;

 James F. Bowman & George R. Bowman, Midway, West Virginia, on 

behalf of Liggett Mining, LLC. 

Before: Judge Paez 

The above-captioned proceedings are before me upon petitions for the assessment of civil 

penalties filed by the Secretary of Labor pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. The Secretary charges Liggett Mining, LLC 

(“Liggett Mining”) with three violations of mandatory standards and proposes civil penalties of 

$7,174 for these violations. 

I. Statement of the Case 

The Commission received the Secretary’s petitions for the assessment of civil penalties 

pertaining to the citations at issue on October 21, 2008. Liggett Mining timely contested the 

citations. These consolidated cases – Docket Nos. KENT 2008-1533 and KENT 2008-1534 – 

were assigned to me on August 13, 2009. I approved the partial settlement of seven of the ten 

violations comprising these dockets on October 6, 2010. Thereafter, I held a hearing in 

Lexington, Kentucky, on December 2, 2010, on the three remaining citations at issue. The 

Secretary presented the testimony of three officials from the Mine Safety and Health 

Administration (“MSHA”) who were the issuing inspectors of the citations in question: 

Wendil Fuson (Tr. 16:10-24, 22:2-6), Roger A. Wilhoit (Tr. 93:11-20, 94:8-14), and George M. 

Jackson, Jr. (Tr. 123:6-18, 126:1-8). Liggett Mining called witnesses Jack Calloway, 

Superintendant at Liggett No. 3 mine (Tr. 171:17-19), and Roger Baker, Maintenance Foreman 

33 FMSHRC Page 1702
for Virginia Fuels, which serves the Liggett No. 5 mine. (Tr. 198:21-25.) The Secretary’s posthearing brief was received on February 1, 2011. Respondent’s post-hearing brief was received 

on February 10, 2011. 

Citation No. 8317048 charges Liggett Mining with violating 30 C.F.R. § 72.630(b) for its 

failure to maintain in operating condition the dust collection system on a roof bolting machine by 

allowing excessive dust to accumulate on the clean air side of the system. Citation No. 8317164 

charges Liggett Mining with violating 30 C.F.R. § 72.630(b) for its failure to maintain the dust 

collection system on a roof bolting machine in permissible condition by allowing the vacuum 

pressure at the drill head to fall below minimum standards. Citation No. 8329466 charges 

Liggett Mining with violating 30 C.F.R. § 75.903 by failing to have a disconnecting device 

installed on the power supply cable of a welder. The Secretary submits that all three alleged 

violations should be evaluated as significant and substantial (“S&S”).1 The Secretary originally 

recommended that all three violations be assessed as moderately negligent, with proposed civil 

monetary penalties of $3,689 for Citation No. 8317048, $1,203 for Citation No. 8317164 and 

$2,282 for Citation No. 8329466. In her post-hearing brief, the Secretary now contends that 

findings of high negligence are warranted for Citation Nos. 8317048 and 8329466. Accordingly, 

the Secretary is seeking an increase in civil monetary penalties for these two violations above 

their originally proposed assessments. 

II. Issues 

Liggett Mining denies the alleged violations in this matter. Specifically, Liggett Mining 

contends that the cited conditions do not constitute violations of the Secretary’s mandatory 

health or safety standards. Accordingly, the issues before me are: (1) whether the conditions 

cited violated the health or safety standards as they have been set forth by the Secretary; (2) 

whether the Secretary’s designations of these violations as S&S are supported by the record; 

(3) whether the Secretary’s designations regarding the level of Liggett Mining’s negligence in 

committing these alleged violations are supported by the record; (4) whether Liggett Mining 

received fair notice of the requirements under 30 C.F.R. § 72.630(b) as they pertain to Citation 

No. 8317164; and (5) whether the proposed civil penalties are appropriate. 

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

§ 814(d)(1), 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.” 

33 FMSHRC Page 1703
 

 

III. Background and Findings of Fact
	

A. Operations of Liggett Mining 

Liggett Mining operates both strip and underground mines in Tennessee, Kentucky, and 

Virginia. (Tr. 21:2-3.) The Liggett No. 3 and No. 5 mines are operations of Liggett Mining 

located in Harlan country in the town of Liggett, Kentucky. (Tr. 19:21-20:9, 95:22–96:6.) The 

mines run two production shifts and one maintenance shift per day. (Tr. 20:17-20, 96:16-17.) 

The Liggett No. 3 mine has one working section. (Tr. 20:10-12.) In 2008, there were 

five headings in the section where active mining took place, also known as the face. (Tr. 24:5-

6.) The working section at Liggett No. 3 is a mechanized mining unit (“MMU”) that operates a 

continuous miner, shuttle cars, and a roof bolting machine. (Tr. 20:13-16.) The ventilation plan 

in effect for Liggett No. 3 in July 2008 stipulated that air flow must be maintained at the rate of 

3,000 cubic feet per minute for 5 feet behind the roof bolter. (Tr. 43:18-44:25.) The air is 

supposed to flow away from the entry and towards the working face where coal is extracted. 

(Tr. 44:15-45:5.) The entry at heading #2 in the mine was five-and-a-half to six-feet tall and 

twenty-feet wide. (Tr. 179:22-25.) Thus, at the minimum air flow, dust particles in the air of 

entry #2 would move at a rate of 30 to 34 feet per minute. (Tr. 181:3-8.) 

B. Mechanics of the Lee Norse Roof Bolter 

The Lee Norse twin-head roof bolting machine has two large rock drills, one on each of 

its sides at the front end of the machine. (Tr. 28:24-25; Ex. G-4.) Hydraulic booms press the 

drill into the roof of the mine. (Tr. 29:1-2.) At the end of each drill head is a drill steel piece 

with a component containing two holes, which are used for dust collection. (Tr. 29:2-5.) 

When the dust collection system is in operation, vacuum pressure pulls the dust generated 

from drilling through the two holes at the drill head. (Tr. 29:6-8.) The dust travels through the 

drill steel and the drill head, and then through a dust hose that brings it to the dust collection 

system. (Tr. 29:8-12.) On each side of the machine, contaminated air travels through filters, and 

clean air exits the machine as exhaust through the mufflers to relieve pressure from the vacuum 

pumps. (Tr. 29:12-17, 33:11-13.) The filtered dust is collected in the dust boxes of the dust 

collection system. (Tr. 30:4-7.) These boxes are periodically emptied. (Tr. 30:6-10.) The top 

of the dust collection box marks the beginning of the “clean air” side of the dust collection 

system. (Tr. 32:24-33:1.) A hose connects the top of the dust box to a blower motor. (Tr. 

189:21-24.) The blower motor is connected to the muffler by a second hose. (Tr. 189:21-24.) 

No dust should be in the hose between the filter and the muffler. (Tr. 32: 22-24.) The clean air 

side of the system runs from the top of the dust collection box to the exhaust, and includes the 

muffler. (Tr. 32:24 – Tr. 33:1.) 

Respirable dust should not exit through the exhaust system of the roof bolter. (Tr. 30:1-

3, 33:3-13.) Dust in the clean air side of the system indicates that the filter is being bypassed. 

(Tr. 42:16-20.) Such bypass of the filter is the result of a malfunction within the roof bolter, 

such as a torn filter or inadequate seal. (Tr. 42:16-20.) Respirable dust is briefly emitted into the 

33 FMSHRC Page 1704
air when the roof bolter is first put into operation before the vacuum pressure can travel to the 

drill head, but it dissipates in a matter of seconds. (Tr. 33:25-34:4.) 

One purpose of the vacuuming system on a roof bolter is to prevent the operator from 

inhaling dust as the drill penetrates the mine roof. (Tr. 104:2-22.) A qualified person designated 

by the operator is required to perform a dust parameter check on the roof bolter at the beginning 

of every shift. (Tr. 48:5-49:3.) A small amount of dust may pass through the filter, but during 

the dust parameter check any dust accumulation in the dust collection system should be detected 

and eliminated. (Tr. 48:14-18, 81:17-82:12.) Additionally, a vacuum pressure reading should be 

done as part of the dust parameter check. (Tr. 109:14-16.) 

C. The Roof Bolter Dust Collection Citations 

1. Citation No. 8317048 at Liggett No. 3 Mine 

Citation No. 8317048 was issued by Inspector Fuson on July 24, 2008 at 7:35 a.m. 

(Tr. 22:5-6), during a shift at the Liggett No. 3 mine that began at 6:00 a.m. (Tr. 176:12). The 

citation resulted from a regular quarterly E01 MSHA inspection. (Tr. 22:14-23:1.) On the date 

of the inspection, Fuson traveled with mine superintendent Jack Calloway to the working 

section. (Tr. 23:23-24:8.) The inspection began with an imminent danger run, which is a visual 

inspection of each working area for hazards. (Tr. 24:1- 4.) Fuson and Calloway began at 

heading #5 and progressed along the headings in descending order. (Tr. 24:15-20.) Fuson did 

not observe any violations prior to reaching heading #2. (Tr. 24:15-20.) However, as Fuson and 

Calloway traveled from entry #3 to entry #2, they observed dust blowing out of entry #2. 

(Tr. 24:18-20). The dust rolling out of the entry indicated there was negative pressure from 

airflow. (Tr. 45:15-17.) Fuson testified that if the airflow was being maintained in accordance 

with the mine’s ventilation plan, then 3,000 cubic feet of air per minute would be creating 

positive pressure, blowing the dust towards the coal face and not out the entry. (Tr. 44: 15-20.) 

Fuson observed a haze of dust when he shined his helmet light into the entry. (Tr. 43:1-

7.) The dust in the air appeared to have the thickness of fog. (Tr. 43:1-7.) When the inspection 

party reached the entry, Calloway flagged the men operating the Lee Norse twin-head roof 

bolting machine in the heading to turn it off. (Tr. 24:21-23, 26:10-12.) When the inspection 

party came to heading #2, there were three miners in the entry.2 (Tr. 26:2-3.) These men were 

not wearing any breathing protection. (Tr. 28:4-7.) The roof bolter was de-energized by one of 

the men hitting the panic bar on the machine. (Tr. 37:8-11.) 

At the time of the inspection, heading #2 was approximately 50 to 70 feet deep. 

(Tr. 26:13-24.) The roof bolter was located at the far end of the entry, directly at the coal face, 

putting the back of the machine at 40 to 50 feet away from the last open crosscut where Fuson 

and Calloway had entered the heading. (Tr. 27:15-28:3.) Upon inspecting the roof bolter, Fuson 

2 Respondent’s witness, Calloway, testified there were two men working on the roof 

bolter. (Tr. 177:24-25.) However, it is unclear from his testimony whether those were the only 

men in the entry. Additionally, Fuson noted in the citation that three people were affected by the 

violation. (Ex. G-1.) Liggett has not disputed this determination by the inspector. 

33 FMSHRC Page 1705
 

found that the filters had been changed on both sides of the machine. (Tr. 37:24-38:8.) Also, the 

lids of the dust box were wet and clean, indicating that they had been washed. (Tr. 38:19-22.) 

However, the clean air side of the dust collection system was lined with dust accumulation from 

the lid of the dust box, through the dust hose, and exiting out of the muffler. (Tr. 39:2-15.) The 

inspector determined that the amount of dust in the roof bolter indicated that the hazardous 

accumulation had been developing for at least one shift of eight hours with the roof bolter in 

operation, exposing miners to dust for that duration. (Tr. 49:9-18, Tr. 81:1-8.) See discussion 

infra Part V.A.1. After inspecting the roof bolter, Fuson issued the citation at 7:35 a.m., and 

gave the operator one hour to abate the condition. (Tr. 22:5-6, 39:19-21.) The citation was 

terminated over an hour later at 9:20 a.m. because Fuson was engaged in other inspection 

activities. (Tr. 39:23-40:5.) At the time the citation was terminated, dust was no longer blowing 

from the muffler. (Tr. 40:6-10.) The citation had been abated by pouring two to three gallons of 

water down the drill head on each side of the bolter, and letting the water run through dust 

collection system. (Tr. 184:10-16.) 

2. Citation No. 8317164 at Liggett No. 5 

Inspector Wilhoit issued Citation No. 8317164 at the Liggett No. 5 mine on June 23, 

2008, as the result of a regular inspection. (Tr. 96:23-97:14.) When Wilhoit examined the roof 

bolting machine in question, it was on the section face and most likely in use. (Tr. 98:15-21.) 

As is standard, the Lee Norse roof bolter had an approval plate on it that specified the minimum 

required vacuum pressure for the drill. (Tr. 99:2-17.) The plate had “MSHA” printed on it. 

(Tr. 99:18-19.) The approval plate stated that the minimum pressure for the cited drill was 15 

inches mercury (“Hg”). (Tr. 99:10-14.) A clean roof bolter is supposed to pull this amount of 

pressure at its drill head. (Tr. 215:15-18.) 

To take the vacuum pressure reading, Wilhoit asked the mine operator to back the roof 

bolter out of the coal face. (Tr. 100:5-11.) The drill was left running. (Tr. 100:5-11.) Wilhoit 

used a vacuum gauge to take the reading. (Tr. 100:5-16.) He inserted the vacuum gauge in the 

drill pot, which is the part of the roof bolter where the drill steel is used to pierce the roof 

surface. (Tr. 100:5-16.) Taking these readings at the drill pot is in accordance with MSHA 

issued guidelines. (Tr. 102:13-103:18.) The vacuum gauge has a rubber gasket at its bottom that 

seals the gauge to the drill in such a manner that no pressure escapes. (Tr. 100:22-101:5.) 

Wilhoit did not observe any visual signs that the vacuum pressure was performing below the 15 

Hg minimum standard. (Tr. 120:3-6.) However, after conducting a vacuum gauge reading on 

the left side of the drill head, Wilhoit obtained a reading of 11.5 Hg. (Tr. 101:12-13.) When 

Wilhoit terminated the citation, the vacuum pressure reading had risen to 19.5 Hg. (Tr. 106:4-7.) 

The citation was issued at 11:55 a.m., and terminated at 1:40 p.m. (Ex. G-6.) 

Wilhoit has previously allowed operators to empty the dust box on the roof bolter prior to 

taking vacuum gauge readings if they requested to do so. (Tr. 112:10-13.) In preparing the roof 

bolter for a vacuum pressure test, the manufacturer recommends emptying the dust box. 

(Tr. 200:16-19.) A full dust box will decrease the vacuum pressure on the roof bolter. (Tr. 

205:20-24.) 

33 FMSHRC Page 1706
D. The Use of Disconnecting Devices 

The power center of a section is an area where high voltage electricity comes into the 

mine and goes through a transformer that distributes power to equipment on the section. 

(Tr. 128:14-19.) A welder is a piece of equipment that receives power from the power center 

(Tr. 128:16-19) and is used to make miscellaneous repairs on equipment. (Tr. 138:8-13.) It is 

most frequently utilized during the maintenance shift but can be used at any time. (Tr. 138:8-

13.) A welder has the form of a box, approximately 2 feet in length, 18 inches in height, and 1 

foot in width. (Tr. 129:10-19.) A power cable extends from one end of the welder and connects 

it to the power source. (Tr. 129:20-24.) The welder at issue utilized a No. 10 power cable. (Tr. 

130:3-6.) This cable is also referred to as a “10/5” cable. (Tr. 128:3-7.) It contains five lead 

wires (three phase leads, a ground lead, and a monitor lead) that are No. 10 in size. If a 

disconnecting device is used, it will be attached at the end of this power cable. (Tr. 130:7-10.) 

A cathead acts as the disconnecting device on the welder. (Tr. 127:15-17.) It has a two-pronged 

“male end” that connects to a receptacle “female” counterpart on the power source. (Tr. 131:7-

10.) 

It is also possible to use the welder without a disconnecting device. (Tr. 131:5-12.) The 

welder’s wires can be jerry-rigged by folding the phase lead wires that conduct power in the 

cable to make them fit directly into the receptacle on the power source. (Tr. 131:10-18.) Thus, 

when the “phase leads” on a welder are not connected to a cathead, the welder can be powered 

by inserting these leads into an electrical component of a piece of machinery anywhere in the 

mine that is producing the requisite amount of voltage, such as a shuttle car, roof bolter, or head 

drive. (Tr. 134:22-135:5.) This practice allows miners to power equipment, such as a welder, 

when they are far from the power center without having to run as much as 500 feet of cable 

between the equipment and the power center. (Tr. 142:3-14.) Using equipment without a 

cathead further saves miners time because they avoid having to change the cathead on their 

equipment to match the size of the receptacle on the power center they are working near. (Tr. 

142:23-143:3.) Although using equipment without a cathead is faster, doing so creates a risk of 

electrocution if power is running through the electrical source at the time the welder is connected 

to it. (Tr. 135:6-15.) 

In general, operating electrical equipment without a cathead creates a hazard because 

cables can easily be pulled out or fall out from the power source, resulting in a flash of electricity 

or the electrocution of a miner upon accidental contact. (Tr. 132:14-17.) The cathead contains a 

locking mechanism that decreases the risk of the power cable being pulled out by locking the 

cathead to the receptacle. (Tr. 139:1-5.) If the cable is pulled out, then the monitor wire will 

break and the breaker will go into effect. (Tr. 139:10-15.) As a result, the power will go off and 

an arc will be prevented when using a cathead. (Tr. 139:16-18.) Indeed, in the absence of a 

cathead, if bare phase leads were pulled out of a power source, an arc would be created that 

resembles a small explosion. (Tr. 140:13-18, 141:14-19.) The accidental disconnection of a 

power cable is of concern in the tight mining environment, where people can stumble and trip on 

the cable. (Tr. 139:5-8.) 

33 FMSHRC Page 1707
In addition to containing three phase leads, the power cable contains a ground lead and a 

monitor lead. (Tr. 131:15-132:1.) The ground and monitor leads provide protection from 

electrocution when equipment is plugged into a power center using a cathead. (Tr. 132:1-134:3.) 

The monitor lead is needed for the breaker to be responsive to a failing ground connection. (Tr. 

132:3-5, 133:22-134:1.) The monitor lead, ground lead, and breaker all function in such a 

manner that allows the breaker to cut off power if the ground connection is lost or 

malfunctioning. (Tr. 133:22-134:1.) 

However, if the power cable is being used without a cathead, then the ground monitor 

system can be bypassed and made ineffective. (Tr. 132:9-133:14.) This is done by splitting the 

ground lead and inserting one end into the ground receptacle and the other into the monitor. (Tr. 

132:9-133:14.) When the monitor is bypassed, the breaker will not take effect if a miner bumps 

the phase lead, touches it, or even grabs it. (Tr. 134:4-10.) Power will continue to flow through 

the phase lead, creating the risk of an electric flash should the lead be pulled out. (Tr. 134:11-

12.) Alternatively, a ground wire may also be split to facilitate the use of a wireless ground 

monitor system by eliminating the need for a jumper cable between the ground and the monitor. 

(Tr. 223:11-22.) 

E. Citation No. 8329466 at Liggett No. 5 

Inspector Jackson issued Citation No. 8329466 at the Liggett No. 5 mine on August 2, 

2008, while inspecting the mine due to an unrelated hazard complaint. (Tr. 126:6-19.) The 

inspection took place during the second of two production shifts that last nine hours. (Tr. 152:7-

11.) The second shift ran from 3:00 p.m. to midnight. (Tr. 152:7-11.) Jackson issued the 

citation in question at 10:05 p.m. (Tr. 152:1-4.) During the inspection, Jackson walked to the 

section power center. (Tr. 128:10-11.) While inspecting conditions at the coal face, Jackson 

observed a 480-volt welder without a disconnecting device attached to its power cable. (Tr. 

128:21-25, 129:4-5, 143:19-20.) The exposed end of the power cable was 5 feet from the 

receptacle of the power center for an active section. (Tr. 137:5-8, 137:18-21.) The phase leads 

on the welder’s power cable were loose with approximately 1 inch of bare copper exposed. (Tr. 

130:13-15, 131:15.) These wires were also folded over and mashed in such a manner that would 

permit them to be inserted into a power source without a cathead. (Tr. 130:17-131:15.) The 

ground lead was split. (Tr. 131:21-23.) The monitor lead was cut approximately seven inches. 

(Tr. 132:5-6.) The welder was not tagged out, and was laying in open view. (Tr. 137:8.) 

Additionally, conditions in the section were wet. (Tr. 146:19-22.) Jackson issued the citation at 

10:05 p.m., which was abated within 25 minutes when a cathead was spliced to the welder’s 

power cable. (Tr. 158:1-15.) 

F. Citations at Issue in this Proceeding 

1. Citation No. 8317048 – Failure to maintain a dust collector in operating condition 

Fuson issued Citation No. 8317048 under section 104(a) of the Mine Act for a violation 

of 30 C.F.R. § 72.630(b). (Ex. G-1.) The citation’s narrative states: 

33 FMSHRC Page 1708
On the MMU-003 working section, the dust collecting system on the co [sic] 

#20914 Lee Norris [sic] twin-head return side bolting machine is not being 

maintained in permissible and operating condition. Upon entering the #2 

heading, the roof bolting machine was barely visible from the float rock dust 

coming out of the exhaust mufflers, there were 3 miners in this area, not wearing 

any breathing protection. The operator Jack Callaway [sic] stop [sic] the machine 

and ordered the machines dust collection system to be flushed with water to 

remove the float dust from the system. New bags had been installed but the 

excessive dust build in the system was massively being disbursed into the 

atmosphere. 

Fuson asserts that three people were affected by this condition and that permanently disabling 

injuries were reasonably likely. (Id.) Fuson charged Liggett with moderate negligence and 

assessed the violation as significant and substantial (“S&S”). (Id.) 

2. Citation No. 8317164 – Failure to maintain a dust collector in operating condition 

Wilhoit issued Citation No. 8317048 under section 104(a) of the Mine Act for a violation 

of 30 C.F.R. § 72.630(b). (Ex. G-6.) The citation’s narrative states: 

The dust collection system on the Lee Norse twin-head drill (return side), S/N 

21981, being operated on the 001/MMU is not being maintained in permissible 

condition. When checked with a vacuum ga[u]ge a reading of 11.5 in. HG. was 

obtained on the left side drill head. A vacuum ga[u]ge reading of 15 in. HG. is 

required. This condition would cause the left side drill operator to breathe an 

excess amount of dust while drilling the mine roof. Two miners operate the left 

side of the drill daily on the 001/MMU. 

Wilhoit asserts that one person was affected by this condition and that permanently disabling 

injuries were reasonably likely. (Id.) Wilhoit charged Liggett with moderate negligence and 

assessed the violation as S&S. (Id.) 

3. Citation No. 8329466 – Failure to install a disconnecting device on a welder 

power cable 

Jackson issued citation No. 8329466 under section 104(a) of the Mine Act for a violation 

of 30 C.F.R. § 75.903. (Ex. G-9.) The citation’s narrative states: 

There is no disconnecting device installed in the cable supplying 480 volts to the 

Miller Maxstar welder located on the 002 MMU. The three phase leads have 

approximately 1” of bare copper exposed at the power supply end, and give the 

appearance that they have been jammed in a power source. The ground wire also 

has bare copper exposed. The condition poses a hazard to miners in that it 

subjects them to electrocution when coming in contact with bare open copper 

wires used to supply 480 volts to this welder. 

33 FMSHRC Page 1709
 

Jackson asserts that one person was affected by this condition and that fatal injuries were 

reasonably likely. (Id.) Jackson charged Liggett with moderate negligence and assessed the 

violation as S&S. (Id.) 

G. Credibility of the Secretary’s Witnesses 

1. Wendil Fuson, Health Specialist, MSHA 

Wendil Fuson is employed by MSHA as a federal mine inspector in Barbourville, 

Kentucky. (Tr. 15:5-14.) At the time of the July 24, 2008 inspection of Liggett Mine No. 3, 

Fuson held the title of Coal Mine Inspector. (Tr. 16:23-24.) He has subsequently obtained the 

title of Health Specialist since May of 2009. (Tr. 16:25-17:1.) Fuson has been employed by 

MSHA since April of 2007. (Tr. 17:2-3.) Before joining MSHA, Fuson had been employed in 

the mining industry since 1980, with close to 20 years of experience in the industry. (Tr. 17:4-

10.) He has spent the majority of his career, eight to twelve years, operating a roof bolter. (Tr. 

17:18:24.) Fuson has exclusively worked at underground mines. (Tr. 17:25-18:1-2.) Fuson was 

certified by the state of Kentucky as a foreman, a position he held for ten years. (Tr. 18:8-16.) 

Upon joining MSHA, Fuson underwent a 25-week training program at the Beckley Mine 

Academy, in addition to 18 to 24 months of on-the-job training. (Tr. 18:19-25, 19:1-2.) His 

training at the Beckley Mine Academy included instruction on how to inspect underground 

mines, and specific instruction on how to inspect a dust collection system on a roof bolter. (Tr. 

19:6-17.) Additionally, prior to the date of inspection, Fuson had been to Liggett No. 3 on 

multiple occasions, including during his time as a trainee. (Tr. 23:14-17.) 

At the time Fuson inspected Mine No. 3 in 2008, he had limited experience as an 

inspector. However, his frank testimony and his significant years of experience in the mining 

industry as a roof bolter operator give him great credibility. Accordingly, I afford great weight 

to his testimony. 

2. Roger A. Wilhoit, Special Investigator, MSHA 

Roger A. Wilhoit has worked in the mining industry since 1973. (Tr. 93:22-24.) He has 

held several positions in underground mining operations including roof bolter and foreman. (Tr. 

94:2-15.) Wilhoit has been employed by MSHA since 2002. (Tr. 93:16-17.) He has held the 

title of Special Investigator for two years. (Tr. 93:14-15.) Wilhoit had the title of Coal Mine 

Inspector at the time Wilhoit inspected Liggett No. 5 in 2008. (Tr. 93:18-20.) Upon starting at 

MSHA, he underwent approximately 25 weeks of training at the Beckley Mine Academy. 

(Tr. 95:1.) He received additional on-the-job training in inspection of roof bolter dust control 

systems. (Tr. 95:15-18.) Prior to June 2008, Wilhoit had previously taken vacuum pressure 

readings on roof bolters. (Tr. 102:2-5.) Due to Wilhoit’s extensive experience in the mining 

industry and relevant experience at MSHA, I give substantial weight to his testimony. 

33 FMSHRC Page 1710
 

3. George M. Jackson, Coal Mine Inspector, MSHA District 7 Field Office 

George M. Jackson has ten years of experience in the underground coal mining industry. 

(Tr. 124:23-125:3.) During his career he had been employed by Liggett Mining. (Tr. 164:8-9.) 

Jackson worked as a section electrician for two years. (Tr. 124:1-2.) Jackson is currently a 

certified electrician and obtained this certification prior to the 2008 inspection in question. (Tr. 

124:3-22.) Additionally, after he joined MSHA in 2007, he received additional training on 

electricity and electrical examinations at the Beckley Mine Academy and through on-the-job 

training. Based on Jackson’s familiarity with Liggett Mining and his specialized experience in 

the electrical field, I give significant weight to his testimony. 

H. Credibility of Respondent’s Witnesses 

1. Jack Calloway, Superintendant, Liggett No. 3 Mine 

Jack Calloway is the superintendant of the Liggett No. 3 mine and has held this position 

for three years. (Tr. 171:17-22.) Calloway has approximately 30 years of experience in the 

mining industry. (Tr. 171:9-11.) He holds several certifications, including Kentucky foreman 

certification and dust sampler certification. (Tr. 171:12-16.) Calloway is an experienced miner 

and demonstrates substantial knowledge on the general operation of Liggett No. 3. However, 

Calloway declined to give specific assessments on the condition of entry #2 and the cited roof 

bolter at issue. (Tr. 194:20-196:3.) I found this aspect of his testimony to be vague and guarded. 

As such, I give significant weight to Calloway’s testimony on the general operating procedures 

at Liggett No. 3, but I do not give significant weight to his testimony on the specific conditions 

in the mine on the date of inspection. 

2. Roger Baker, Maintenance Foreman, Virginia Fuels 

Roger Baker is a Maintenance Foreman at Virginia Fuels, which provides maintenance 

services for Liggett Mining. (Tr. 197:18-19, 198:23-25.) Baker has approximately 33 years of 

experience in the mining industry and has held the position of Maintenance Foreman for 20 

years. (Tr. 198:7-9, 198:18-20.) Liggett Mining was under his authority in 2008. (Tr. 198:23-

25.) However, Baker was not present at the inspections in question at Ligget No. 5. (Tr. 214:11-

21, 221:6-9.) Due to the candor and precision of his technical accounts, I give great weight to 

his testimony on the operation at Liggett No. 5, as well as the mechanics of the equipment in 

question. However, because Baker was not present at either inspection at Liggett No. 5, I give 

very little weight to his testimony regarding the conditions and events surrounding the specific 

citations at issue. 

IV. Principles of Law 

A. Strict Liability under the Mine Act 

Under the Mine Act, operators are held to a strict standard of liability for violation of 

mandatory safety standards. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008) (citing 

Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989)). 

33 FMSHRC Page 1711
Thus, a mine operator is liable for violations under the Mine Act, regardless of its level of 

fault. Id. 

B. Significant and Substantial 

A violation is considered 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 an 

illness of a reasonably serious nature.” Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

However, the S&S designation does not require the violation to “be so grave as to constitute 

imminent danger” or “a condition that could reasonably be expected to cause death or serious 

physical harm before the condition is abated.” Id. at 828. To establish a violation is S&S, the 

Secretary must prove: 

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety – contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

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

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (citing Nat’l Gypsum Co., 3 FMSHRC 822, 

825 (Apr. 1981)); accord Buck Creek Coal v. MSHA, 52 F. 3d 133, 135 (7th Cir. 1995); see also 

Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies 

criteria). The Commission has clarified its position on the third element of the Mathies test in 

that, 

the third element of the Mathies formula “requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event in 

which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 

(Aug. 1984). We have emphasized that, in accordance with the language of 

section 104(d)(1), it is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (Aug. 1984) (emphasis in original). 

U.S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985). Further, a determination that a 

violation is S&S must be made assuming normal mining operations. Id. at 1130. 

C. Negligence 

Under section 110(i) of the Mine Act, an Administrative Law Judge is required to 

consider the operator’s negligence in assessing a civil penalty. 30 U.S.C. § 820(i). Each of the 

Secretary’s mandatory standards carries with it an accompanying duty of care to avoid violations 

of the standard, and an operator’s failure to meet the appropriate duty if a violation occurs 

constitutes negligence. A.H. Stone Co., 5 FMSHRC 13 (Jan. 1983). 

33 FMSHRC Page 1712
D. Fair Notice 

The Commission has stated that in civil penalty proceedings, considerations of due 

process prevent the enforcement of regulatory interpretations where such enforcement would 

validate an application of the regulation that fails to give fair notice of its requirements. Wolf 

Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 2010). The Commission has further 

summarized the standard for fair notice as follows: 

The Commission’s test for notice under the Mine Act 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 deciding 

whether a party had adequate notice of regulatory requirements, a wide variety of 

factors is relevant, including the text of a regulation, its placement in the overall 

regulatory 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. 

Id. at 1682 (citations omitted). 

E. Regulatory Interpretation 

Substantial and broad deference is given to the Secretary’s interpretation of her own 

regulations. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citations omitted). 

The Commission has explained the standard for deference to the Secretary’s interpretation of her 

regulations as follows: 

Where the language of a regulatory provision is clear, the terms of that provision 

must be enforced as they are written unless the regulator clearly intended the 

words to have a different meaning or unless such a meaning would lead to absurd 

results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Utah 

Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal 

Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is ambiguous, 

courts have deferred to the Secretary’s reasonable interpretation of the regulation. 

See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); 

accord Sec’y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 

1990) (“agency’s interpretation of its own regulation is ‘of controlling weight 

unless it is plainly erroneous or inconsistent with the regulation’” (quoting Bowles 

v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other citations 

omitted). The Secretary’s interpretation of her regulations is reasonable where it 

is “logically consistent with the language of the regulation[s] and . . . serves a 

permissible regulatory function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 

(D.C. Cir. 1995) (citations omitted). . . . Additionally, “a regulation must be 

interpreted so as to harmonize with and further and not to conflict with the 

33 FMSHRC Page 1713
objective of the statute it implements.” Emery Mining Corp. v. Sec’y of Labor, 

744 F.2d 1411, 1414 (10th Cir. 1984) (citation omitted). 

Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002). 

V. Legal Analysis, Further Findings of Fact, and Conclusions of Law 

A. Citation No. 8317048 

1. Violation 

The pertinent language in 30 C.F.R. § 72.630(b) sets forth the requirement that “dust 

collectors shall be maintained in permissible and operating condition.” The text of Citation No. 

8317048 states that the Lee Norse twin-head return side bolting machine was not being 

maintained in either a permissible or operating condition. (Ex. G-1.) However, in presenting her 

case, the Secretary limits her allegations of violation to the operating condition of the machine 

and not to its permissible state. (Sec’y Br. 5.) Accordingly, my analysis shall only focus on 

whether the dust collection system on the Lee Norse twin-head return side bolting machine was 

in operating condition. 

The plain use of the word “operating” is synonymous with “functional”, a word defined 

as “performing or able to perform its regular function.” Webster’s Third New Int’l Dictionary 

(Unabridged) 921, 1581 (2002). The regular function of the dust collection system is to absorb 

air contaminated with dust at the drill head, filter and contain the dust before it reaches the clean 

side of the system, and produce clean air on the return side of the machine. (Tr. 29-32.) The 

roof bolter in question was not able to perform these regular functions on the day of Fuson’s 

inspection. The machine emitted a visible dust cloud as Fuson approached heading #2 where it 

was located. (Tr. 24:18-20.) Furthermore, dust lined the entirety of the “clean side” of the 

system, from the lid of the dust box to the muffler from which air exited the system. (Tr. 39:2-

15.) The presence of dust on the clean side of the machine indicated that the filter was being 

bypassed. (Tr. 42:16-20.) The weight of the evidence establishes that the dust collection system 

was not performing its regular function. 

Respondent argues that despite these conditions it did not violate the Secretary’s 

mandatory safety standard because the cited machine was not engaged in production at the time 

of inspection; rather, the machine was undergoing maintenance to correct the problem. (Resp’t 

Br. 9.) No roof bolting had occurred in heading #2 that morning. (Tr. 173: 9-10.) However, this 

argument holds little weight given Fuson’s testimony that the amount of dust accumulated on the 

clean side of the machine indicated the roof bolter had been running for at least one full eighthour shift or longer with a faulty dust collection system, exposing miners to the resulting hazard 

for the duration of the machine’s period of operation. (Tr. 49:9-18, 81:1-8.) Despite Calloway’s 

speculation as to the possible immediate sources of dust accumulation, I give great weight to the 

consistent and certain testimony of Inspector Fuson that the hazard existed for a minimum of one 

shift, particularly given that Respondent’s witness, Calloway, was unable to assess the duration 

of the condition or provide any persuasive indication that Fuson’s assessment was not accurate. 

33 FMSHRC Page 1714
(Tr. 195:19-196:3.) Accordingly, I reject Respondent’s argument, and determine that a violation 

of 30 C.F.R. § 72.630(b) did occur. 

2. Gravity and S&S 

As discussed above, the Secretary has established that a violation of a mandatory safety 

standard has occurred, satisfying the first element of the Mathies test. As to the remaining 

elements, both Fuson and Calloway testified that a haze of dust was present in the entry where 

the roof bolter was located. (Tr. 43:1-7, 177:13-16.) Fuson testified that he believed injury was 

likely to occur if the violation was allowed to persist. (Tr. 83:5-11). In testimony on a 

subsequent respirable dust citation in this matter, Wilhoit testified that injuries most commonly 

associated with excessive respirable dust exposure are permanently disabling conditions, such as 

silicosis and black lung disease. (Tr. 118:22-25.) These conditions deteriorate a miner’s ability 

to breathe over a period of time. (Tr. 118:22-119:2.) 

The testimony of Inspector Wilhoit is consistent with the Secretary’s statements in the 

preamble to 30 C.F.R. § 72.630 as cited in White Buck Coal Co., 30 FMSHRC 535, 542 (June 

2008) (ALJ). (Sec’y Br. 6-7.) In explaining the need to protect miners from harmful respirable 

dust, the Secretary’s preamble notes that, “the development of silicosis and pneumoconiosis 

among underground coal miners has been well documented, particularly among roof bolters.” 

Air Quality Standards for Abrasive Blasting and Drill Dust Control, 59 Fed. Reg. 8318, 8322 

(Feb. 18, 1994). In the same document, the Secretary provides a detailed description of the 

serious nature of such respiratory illness as follows: 

Exposure to silica is a significant health hazard in abrasive blasting and in 

drilling. When workers inhale silica, the lungs react by developing fibrotic 

nodules and scarring around the trapped silica particles. This condition is known 

as silicosis and can result in respiratory difficulty and eventually death. 

Symptoms associated with silicosis include shortness of breath, fever, and 

cyanosis. Severe fungal or mycobacterial infections, such as tuberculosis, often 

cause complications and may be fatal. Dust-impaired macrophages can no longer 

function effectively in fighting disease by killing mycobacteria and other 

organisms. 

Id. at 8319. Here, the violation exposed miners to the risk of increased dust inhalation. This 

hazard could result in respiratory illness of a serious nature. Accordingly, the second and fourth 

elements of the Mathies test are satisfied. 

The third Mathies element remains at issue. Injury must be reasonably likely to occur 

due to the emitted dust for the violation to be S&S. Respondent argues that the violation cannot 

be S&S because evidence presented at trial demonstrates that visible dust was present for less 

than two minutes. (Resp’t Br. 10.) However, I do not find ample evidence supporting this 

proposition or that it would be dispositive here. The extent of the hazard in question is not 

limited to the visible dust cloud observed by Fuson. Rather, it includes the build-up of dust in 

the clean air side of the roof bolting machine during previous shifts when air was flowing 

through that build-up of dust and out into the mine. As previously discussed, I find that the 

33 FMSHRC Page 1715
 

evidence indicates the machine in question had been running for at least one full eight-hour shift, 

if not more, with a faulty dust collection system. (Tr. 49:9-18, 81:1-8.) Employees would have 

been exposed to the dust hazard for the duration that the machine was in operation. (Tr. 81:1-8.) 

For these reasons, I reject Respondent’s assertion that the hazardous condition only existed two 

minutes. 

Further, the Secretary’s preamble to the final rule on air quality explains, “[d]uring 

abrasive blasting and drilling, there is the potential for extremely high exposures [to dust] in 

short periods of time to both the miners doing the abrasive blasting or drilling and to other 

miners in the immediate area.” 59 Fed. Reg. at 8318. (See Sec’y Br. 6-7.) Even brief exposure 

can lead to injury. In this instance, the miners in the vicinity of the hazard were not wearing 

breathing protection. (Tr. 28:4-7.) Additionally, in the months prior to the inspection the roof 

bolting machine in question had been put on “designated area” status by MSHA as a protective 

health measure due to high levels of quartz in its dust samples. (Tr. 72:1-15.) Given the totality 

of the circumstances, injury was reasonably likely to occur as a result of the dust hazard. I 

determine that the third Mathies element is satisfied. 

3. Negligence 

The operator is required to perform a dust parameter check on the roof bolter before 

production begins if the section had been idle in the prior shift. 30 C.F.R. § 75.362(a)(2). 

During this check, the problems with the dust collection system should be detected and 

eliminated. (Tr. 48:14-18.) The shift began at 6:00 a.m. (Tr. 48:8-11.) The citation was issued 

at 7:30 a.m. (Tr. 48:12-13.) However, no production was yet underway in heading #2. (Tr. 

178:13-16.) Respondent argues that because the morning shift had been preceded by an idle 

shift, the operator had not breached its duty to inspect yet. (Resp’t Br. 4.) Nevertheless, the preshift examination is a minimum requirement, and the operator is required to make further 

inspection when necessary. 30 C.F.R. § 75.362(a)(2). Given the extent of the dust accumulation 

and its visible emission from the roof bolter, the operator should have been on notice of the 

condition well before the pre-shift examination. 

Further, even if this maintenance was being performed as part of a pre-shift exam, the 

operator was still under a duty per its ventilation plan to conduct this maintenance downwind 

from miners in an area with good airflow. (Tr. 87:21-88:8.) The amount of dust in entry #2 

upon Fuson’s arrival indicates that the ventilation was inappropriate for this maintenance 

activity. (Tr. 88:4-6.) As these requirements for safe maintenance were in Liggett’s ventilation 

plan, both the operator and its employees should have been on notice. Indeed, the manner of 

undertaking the machine’s maintenance was in itself negligent. 

The Secretary initially assessed that Ligget mining was moderately negligent, but in her 

post-hearing brief she asserts that Ligget is liable for high negligence. By the Secretary’s 

definition, moderate negligence occurs when the operator knew or should have known of the 

violative condition or practice, but there are mitigating circumstances. 30 C.F.R. § 100.3(d) 

(Table X) (2008). High negligence is distinguished by the Secretary in that there are no 

mitigating circumstances. Id. 

33 FMSHRC Page 1716
 

Here, the violation was discovered while the operator was acting to remedy the situation. 

Moreover, the filters on the roof bolter had been changed, and the lid of the dust box had been 

washed. (Tr. 37:24-38:8.) The operator’s attempt to remedy the condition, albeit rather late, is a 

mitigating factor. Consequently, I conclude that Liggett Mining was moderately negligent in 

committing this violation. 

4. Civil Penalties 

Section 110(i) of the Mine Act requires the Administrative Law Judge to consider six 

criteria in the assessment of a civil penalty: the operator’s history of previous violations, the 

appropriateness of the penalty to the size of the operator’s business, the operator’s degree of 

negligence, the penalty’s 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). 

The Secretary originally proposed a penalty of $3,689 for this violation. The parties have 

stipulated that Liggett Mining is a moderate sized operator. (Ex. J-1.) They have further 

stipulated that Liggett Mining’s ability to remain in business will not be affected by the proposed 

penalty. (Id.) The operator was issued 16 citations for violations of 30 C.F.R. § 72.630(b) in the 

last 24 months. (Ex. G-11.) This history was properly weighted in the Secretary’s original 

proposal, in accordance with 30 C.F.R. § 100.3(c). My determinations on negligence and gravity 

are consistent with the Secretary’s originally proposed assessment. Additionally, the operator’s 

swift abatement demonstrates a good faith effort to comply with the standard. In considering all 

the relevant factors, I hereby assess a civil penalty of $3,689. 

B. Citation No. 8317164 

1. The Violation 

The pertinent language of 30 C.F.R. § 72.630(b) states, 

[d]ust collectors shall be maintained in permissible and operating condition. Dust 

collectors approved under Part 33—Dust Collectors for use in Connection with 

Rock Drilling in Coal Mines of this title . . . are permissible dust collectors for the 

purpose of this section. 

Under 30 C.F.R. § 33.11, dust collectors are required to bear an approval plate to indicate their 

permissible status. Additional precautions necessary for maintaining the unit in an approved 

condition may be added to the plate at MSHA’s direction. 30 C.F.R. § 33.11(a). 

The dust collection unit in question bore an approval plate that indicated MSHA required 

a minimum vacuum pressure of 15 Hg on the machine. (Tr. 99:2-19.) Wilhoit took a vacuum 

gauge reading at the drill pot on the left side of the drill head, which measured 11.5 Hg. (Tr. 

100:17-101:13.) He subsequently issued a citation because the pressure at the drill pot was 

below 15 Hg. (Ex. G-6.) 

33 FMSHRC Page 1717
Respondent argues it did not have fair notice that the vacuum pressure requirement was 

intended for the drill pot and not the relief valve.3 (Resp’t Br. 14.) The standard for fair notice is 

not actual notice, but rather whether a reasonably prudent person would have known the 

requirement of the standard. Wolf Run, 32 FMSHRC at 1682. As established during Wilhoit’s 

testimony, the MSHA Coal Mine Health Inspection Procedures Handbook, Appendix E, clearly 

states that pressure readings can be taken at the drill pot. (Tr. 102:13-103:18; Ex. G-8.) No 

mention is made of the relief valve in the relevant section. This document is publicly accessible. 

A reasonably prudent operator would know and understand the enforcement procedures of 

MSHA to the extent they were disseminated in the public domain. 

Respondent also argues that the standard only requires 15 Hg to be maintained under 

controlled conditions, emphasizing that the requirement only pertains to a dust collection unit 

when its dust box has been cleaned. (See Tr. 12:24-13:24.) Yet, no MSHA materials support 

this interpretation. Further, by Respondent’s own admission, Liggett was aware this standard 

was not enforced under controlled conditions. (Tr. 13:14-24.) I do not find Respondent’s 

interpretation of the standard persuasive.4 Moreover, emptying the dust box is not a regular 

practice for MSHA inspectors taking vacuum pressure readings, and Respondent does not 

dispute that. (Tr. 13:14-24.) Therefore, I determine that Respondent had fair notice of the 

requirements of the standard under the Secretary’s interpretation. 

Ligget Mining was required to maintain 15 Hg at the drill pot at all times. It failed to do 

so in violation of 30 C.F.R. § 72.630(b). 

2. Gravity and S&S 

Liggett Mining has violated 30 C.F.R. § 72.630(b), satisfying the first Mathies element. 

Analysis of the second and fourth Mathies elements for this violation is the same as for the 

violation of this standard at the Liggett No. 3 mine. See analysis supra Part V.A.2. Failure to 

maintain the dust collection system on a roof bolter in accordance with the standard creates a 

discrete safety hazard in increasing miners’ exposure to respirable dust. (Tr. 106:21-107:3.) If 

injury does occur as result of this exposure, it is reasonably likely to take the form of a serious 

respiratory condition, such as silicosis or black lung disease, both of which are likely to have 

permanently disabling effects. (Tr. 107:10-25.) Thus, I determine that the violation contributed 

to a discrete safety hazard, and that the there is a reasonable likelihood that injury resulting from 

that hazard would be of a serious nature, satisfying the second and fourth Mathies elements. 

In order for the third Mathies element to be satisfied, injury must be reasonably likely to 

occur as a result of a hazard contributed to by the violation. The roof bolter operator stands 

3 The minimum relief valve pressure is 15 Hg, per the manufacturer’s specifications. 

(Ex. R-2.) 

4 Respondent essentially argues that the standard should be changed so it only applies 

under controlled conditions. I decline Respondent’s invitation to do so, as this issue is 

outside the scope of my authority. 

33 FMSHRC Page 1718
directly beside the drill pot during the course of normal mining operations. (Tr. 104:13-19.) As 

he stands there, dust is generated when the drill pierces the mine roof. (Tr. 104:20-22.) If the 

vacuum pressure continues to operate at 11.5 Hg, the operator will inhale an excess amount of 

dust. (Tr. 105:18-22.) This exposure to the excess dust can lead to permanently disabling 

respiratory illness. (Tr. 105:20-24.) I do not find persuasive Respondent’s argument that, in the 

absence of visual dust, this violation cannot satisfy the Mathies test. (Resp’t Br. 19.) As 

Inspector Wilhoit testified, when the vacuum pressure on the roof bolting machine is not 

maintained at the appropriate level, less dust will go through the dust collection system. (Tr. 

105:1-6.) As a result, more dust will remain suspended in the air. (Tr. 105:4-6.) Given the 

vacuum pressure was functioning at almost 25 percent below the minimum standard, and the 

operator’s close proximity to the origin of the dust, I determine it is reasonably likely that the 

operator would be exposed to excess dust for at least a brief amount of time during the course of 

normal mining operation. See Genwal Res. Inc., 27 FMSHRC 580, 589 (Aug. 2005) (ALJ) 

(persuasive authority finding that the presumption of exposure to respirable dust without a dust 

sample was reasonable under the facts). As previously discussed, even brief exposure to excess 

respirable dust can reasonably lead to injury. The third Mathies element is satisfied. 

Consequently, I determine that this violation of 30 C.F.R. § 72.630(b) was S&S. 

3. Negligence 

Respondent was aware that not routinely maintaining a clean dust box would decrease 

the vacuum pressure on the roof bolter. (Tr. 205:20-24.) The 15 Hg requirement is a minimum 

standard. The pressure on the unit after the condition was abated rose to 19.5 Hg. (Ex. G-6.) 

Given the important function of the dust collection system in maintaining a safe work 

environment, the operator should have provided for adequate cleaning of the dust collection 

system as needed to prevent the pressure from falling below minimum standards. However, 

because there was no easily visible dust cloud or direct testimony of the operator’s knowledge of 

this condition, the operator’s actions do not rise to the level of high negligence in these 

circumstances. Therefore, I determine that Liggett Mining acted with moderate negligence. 

4. Civil Penalty 

The Secretary has proposed a civil penalty of $1,203. The parties have stipulated that 

Liggett Mining is a moderate sized operator and that its ability to remain in business will not be 

affected by the proposed penalty. (Ex. J-1.) My determination of moderate negligence is 

consistent with the Secretary’s original proposal. I also find that injury was reasonably likely to 

occur as a result of this violation. The operator’s abatement demonstrates a good faith effort to 

comply with the standard. Accordingly, I hereby assess a civil penalty of $1,203. 

C. Citation No. 8329466 

1. The Violation 

The Secretary alleges that Liggett mining violated 30 C.F.R. § 75.903 by failing to have a 

disconnecting device attached to the power cable on a welder that was visibly disconnected from 

33 FMSHRC Page 1719
the power source. The standard requires that, “[d]isconnecting devices shall be installed in 

conjunction with the circuit breaker to provide visual evidence that the power is disconnected.” 

30 C.F.R. § 75.903. Under this standard, a disconnecting device should be attached to the 

welder. (Tr. 130:7-10.) The operator was aware that the Secretary enforces the standard to 

apply to idle welders not connected to a power source. (Tr. 212:19-213:2.) Therefore, I do not 

find that a novel issue of regulatory interpretation arises under these facts.5 

Further, the testimony of Respondent’s witness on the previous enforcement of this 

standard indicates Respondent had fair notice of the requirements under the Secretary’s 

interpretation. 

Respondent admits no cathead was attached to the welder in question. Given these facts, 

I determine this constitutes a violation of 30 C.F.R. § 75.903. 

2. Gravity and S&S 

An established violation of 30 C.F.R. § 75.903 satisfies the first Mathies element. The 

absence of a cathead contributes to a discrete safety hazard in creating an increased risk of 

electrocution. (Tr. 132-134.) Electrocution by the 480-volt welder in question is reasonably 

likely to lead to cardiac arrest, if not death. (Tr. 144:24-145:22.) Thus, the second and fourth 

Mathies elements are satisfied. However, injury as a result of this violation is predicated on 

electricity being conducted through the welder and its lead wires. When Jackson found the 

welder, it was not connected to a power source. The end of the power cable was 5 feet away 

from the power center. (Tr. 137:5-8.) The condition of the welder cables could have resulted 

from the machine being used without a cathead. (Tr. 130:17-131:12.) However, equally 

credible testimony was given by Baker that the condition of the leads can be explained by the 

5 Yet, if there were an issue of regulatory ambiguity, the Secretary’s interpretation would 

nonetheless meet the standard for deference set forth in Lodestar Energy. The inquiry is whether 

the Secretary’s interpretation is consistent with the regulation and not clearly erroneous or 

impermissible. I find no indication that the Secretary’s interpretation is clearly erroneous or 

impermissible. Further, the Secretary’s interpretation is not inconsistent with the language of the 

regulation; rather, it advances the regulation’s objective. The consequence of the Secretary’s 

interpretation is that catheads would be required on welders at all times. Interestingly, this is 

already the dominant policy at Liggett Mining. (Tr. 211:6-11.) Additionally, the relevant 

section of MSHA’s Program Policy Manual (“PPM”) states that, “[d]isconnecting devices shall 

be plainly marked for identification to reduce the chance of energizing a cable while repairs are 

being made on the cable.” V MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 75, at 

85 (2003). Respondent argues the standard was not violated because there was visual evidence 

the power was disconnected. (Resp’t Br. 16.) However, the language of the PPM indicates the 

purpose of the standard is also to prevent miners from accidentally energizing a cable by clearly 

marking points of contact where power would be conducted. The unraveled state of the power 

lead and other leads of the welder cited would not put a miner on specific notice of this. Thus, I 

reject Respondent’s argument that the standard is satisfied by providing any form of visual 

evidence that the power is disconnected. 

33 FMSHRC Page 1720
process of fitting the leads to go into an incorrectly sized cathead. (Tr. 221:23-223:6.) 

Additionally, the ground wires may have legitimately been split to facilitate the use of a wireless 

ground monitor system. (Tr. 223:13-22.) Thus, I do not find sufficient evidence to establish that 

the welder was in use without a cathead. Further, the welder is not an item continuously needed 

during the production shift, as it is only utilized to make miscellaneous repairs. (Tr. 138:8-13.) 

It is more frequently utilized during the maintenance shift which followed directly after the shift 

of the inspection. (Tr. 138:6-10, 152:7-13.) Two hours remained in the production shift at the 

time of the citation. (Tr. 152:2-13.) Under normal mining conditions, there is no indication that 

the welder in question would have been needed for immediate use or that it would have been 

used in the condition it was found, i.e., without a cathead. Nor was there any evidence this was 

the only welder available. I determine it is unlikely that this welder would have been used in the 

course of normal mining operations, and I determine that injury as a result of the violation was 

unlikely to occur. Therefore, I conclude this violation does not meet the third Mathies element, 

and is not S&S. 

3. Negligence 

The welder in question was lying in a wet area of the mine with exposed cables, and 

without a disconnecting device. (Tr. 146:19-22, 130:14-15, 129:4-5.) Use of the welder in this 

violative condition could have led to fatal injury. (Tr. 144:24-145:22.) Historically, the welder 

has been used in this dangerous manner. (Tr. 164:6-11.) Employees have some interest in 

continuing this practice, as it saves time and facilitates use of equipment that is far from the 

power center. (Tr. 142.) Given these factors, a reasonably prudent operator charged with the 

safety of his employees should have trained and supervised the miners to tag out a welder if its 

cathead had been removed. However, the welder was not tagged out. (Tr. 137:2-8.) It remained 

in a busy area of the mine, available for use. (Tr. 137:8-138:5.) Yet no persuasive testimony 

was given that the miners were using the welder at the time of the inspection. Accordingly, I 

find the operator acted with moderate negligence. 

4. Civil Penalty 

The Secretary originally proposed a civil penalty of $2,282. The parties have stipulated 

that Liggett Mining’s ability to remain in business will not be affected by the proposed penalty. 

(Ex. J-1.) The operator has been cited twice in the last 24 months for violation of the same 

standard. (Ex. G-11.) This history was properly considered in the Secretary’s original proposal 

in accordance with 30 C.F.R. § 100.3(c). Although my finding of moderate negligence is 

consistent with the Secretary’s original proposal, I have determined that injury is unlikely to 

occur, so a reduction in the Secretary’s proposed penalty is merited. Furthermore, the operator’s 

subsequent actions demonstrate a good faith effort to comply with the standard. Accordingly, I 

hereby assess a civil penalty of $700. 

33 FMSHRC Page 1721
VI. ORDER 

In light of the foregoing, it is hereby ORDERED that Citation Nos. 8317048 and 

8317164 are AFFIRMED. 

Within 40 days of this decision, the Secretary is ORDERED to MODIFY Citation 

No. 8329466 by marking that injury is “unlikely” and striking its designation as S&S. 

Also within 40 days of this decision, Liggett Mining is ORDERED to pay a civil penalty 

of $5,592. 

_ /s/ Alan. G. Paez____________ 

Alan G. Paez 

Administrative Law Judge 

33 FMSHRC Page 1722
Distribution: 

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

James F. Bowman & George R. Bowman, P.O. Box 99, Midway, WV 25878 

/NZ 

33 FMSHRC Page 1723
 

 

33 FMSHRC Page 1724

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

July 28, 2011 

AMERICAN COAL COMPANY, : CONTEST PROCEEDINGS
 

Contestant

v.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION, (MSHA),

Respondent

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION, (MSHA),

Petitioner

v.

AMERICAN COAL COMPANY,

Respondent

 :

 : Docket No. LAKE 2008-172-R 

: Order No. 6673874; 01/24/2008

 : 

: Docket No. LAKE 2008-173-R

 : Order No. 6673876; 01/24/2008

 : 

: Galatia Mine 11-02752

 :

 :

 : CIVIL PENALTY PROCEEDINGS 

:

 : Docket No. LAKE 2009-6

 : A.C. No. 11-02752-162890-01 

:

 : Docket No. LAKE 2009-54 

: A.C. No. 11-02752-165816-01

 :

 : Docket No. LAKE 2009-55 

: A.C. No. 11-02752-165816-02 

:

 : Docket No. LAKE 2009-56

 : A.C. No. 11-02752-165816-03

 :

 : Mine: Galatia Mine 

Appearances: Karen Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado on behalf of the Petitioner; 

Jason W. Hardin, Esq., and Mark Kittrell, Esq., Fabian & Clendenin, Salt 

Lake City, Utah on behalf of the Respondent 

DECISION 

Before: Judge Melick 

These cases are before me upon petitions for assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). During hearings on April 

12, 2011 and April 13, 2011 in Evansville, Indiana, the parties reached a settlement agreement as 

to all pending charging documents. The agreement was supplemented post-hearing. The 

Secretary’s rationale set forth in the supplemental motion is incorporated herein by reference. 

The Respondent has agreed to pay a reduced overall penalty of $163,516.00. In explaining the 

reduced penalties the Secretary has indicated that, in essence, upon further evaluation, she finds 

that there is insufficient evidence to sustain her original charges. The Secretary has also vacated 

Citation Number 6617943. I have considered the representations and documentation submitted in 
 

33 FMSHRC Page 1725

these cases, and I conclude that the proffered settlement is acceptable under the criteria set forth 

in section 110(i) of the Act.

 ORDER 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that Respondent pay a penalty of $163,516.00, within 40 days of this order.1 

Contest Proceedings Docket Nos. LAKE 2008-172-R and LAKE 2008-173-R are now moot and 

are therefore dismissed.

 /s/ Gary Melick

Gary Melick

Administrative Law Judge

202-434-9977 

Distribution:
 

Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
 

Suite 800, Denver, CO 80202
 

Jason D. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City,
 

UT 84111-2323
 

Mark Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, UT
 

84111-2323
 

/to
 

1 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

ADMINISTRATIVE LAW JUDGE ORDERS
 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

 Washington, D.C. 20001 

July 8, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA),

Petitioner

 : Docket No. KENT 2008-562 

: A.C. No. 15-18861-137278 

v.

CONSHOR MINING, LLC,

Respondent

 :

 : Docket No. KENT 2008-782 

: A.C. No. 15-18861-143281 

:

 : Mine No. 1 

ORDER

The captioned civil penalty proceedings concern 104(d)(2) Order Nos. 7502867 and 

7502879 in Docket No. KENT 2008-562 issued in May 2007, and 104(d)(2) Order No. 7503222 

in Docket No. KENT 2008-782 issued in June 2007. All three of the subject orders allege 

violations of the mandatory standard in section 75.220(a)(1) that requires a mine operator to 

follow its approved roof control plan. 30 C.F.R. § 75.220(a)(1). However, all three of the cited 

violative conditions concern different provisions of Conshor Mining, LLC’s (“Conshor’s”) 

roof control plan. 

I. Background 

Section 110(b)(2) of the Mine Improvement and New Emergency Response 

Act of 2006 (“New Miner Act”) provides for enhanced penalties for flagrant violations. 

30 U.S.C. § 820(b)(2). The Secretary alleges the subject roof control violations are 

“repeated” flagrant violations as contemplated by section 110(b)(2) of the New Miner Act. 

Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury.” 

30 U.S.C. § 820(b)(2). (Emphasis added). 

33 FMSHRC Page 1726
The Secretary seeks to impose civil penalties of $94,900 for Order No. 7502867; 

$110,900 for Order No. 7502879; and, $122,200 for Order No. 7503222 pursuant to section 

100.5(e) of the Secretary’s rules governing her procedures for assessment of proposed penalties. 

30 C.F.R. § 100.5(e). The language of section 100.5(e), adopted as initially proposed through a 

notice and comment rulemaking, essentially repeats the statutory provisions of section 110(b)(2) 

of the New Miner Act. 72 Fed. Reg. 13592 (Mar. 22, 2007). Specifically, newly adopted 

section 100.5(e) states: 

Violations that are deemed to be flagrant under section 110(b)(2) of the Mine Act 

may be assessed a civil penalty of not more than $220,000. For purposes of this 

section, a flagrant violation means “a reckless or repeated failure to make 

reasonable efforts to eliminate a known violation of a mandatory health or safety 

standard that substantially and proximately caused, or reasonably could have been 

expected to cause, death or serious bodily injury.” 

72 Fed. Reg. at 13646. (Emphasis added). 

As a matter of policy, the Secretary relies on two prior unwarrantable violations of the 

same mandatory standard within 15 months as the basis for a repeated flagrant violation. This 

criteria for a repeated flagrant violation was initially adopted by the Mine Safety and Health 

Administration (MSHA) in Procedure Instruction Letter (“PIL”) No. 106-111-04 (Oct. 26, 

2006). However, this “repeated violation” criteria may not have been promulgated in accordance 

with section 553 of the Administrative Procedure Act (“APA”) as the PIL criteria was not 

explicitly delineated in the proposed provisions of the new rule. 5 U.S.C. § 553. 

Consistent with MSHA’s PIL criteria, the subject violations are alleged to be repeated 

flagrant violations based on two final unwarrantable violations of different roof control 

provisions that occurred within 15 months of the subject orders in these proceedings. Order No. 

6663986 was issued on March 19, 2007, and Order No. 7551844 was issued on April 10, 2007. 

Predicate 104(d) Order Nos. 6663986 and 7551844 cited violations of the mandatory standard 

for roof control plans in section 75.220. While Order No. 7551844 cited a violation of 

75.220(a)(1) that requires a mine operator to follow its approved roof control plan, Order No. 

6663986 cited a generic violation of 75.220 without citing a subsection of the mandatory 

standard. Conshor stipulated that Order No. 6663986 should be construed as citing a violation of 

75.220(a)(1).1 

1

 Although Order Nos. 6663986 and 7551844 cite violations of different provisions of 

Conshor’s roof control plan, the Secretary asserts that Conshor’s general failure to adhere to its 

roof control plan as required by 75.220(a)(1) constitutes violations of the same mandatory 

standard. 

33 FMSHRC Page 1727
II. Procedural History 

MSHA issued a notice seeking public comment on its proposed rule in section 100.5(e) 

that would serve as the basis for proposing enhanced civil penalties under the “flagrant” 

violation provisions of section 110(b)(2) of the New Miner Act. 71 Fed. Reg. 53054 (Sept. 

2006). 

The comment period closed on November 9, 2006. 71 Fed. Reg. 62572 (Oct. 2006). 

However, as previously noted, the proposed section 100.5(e) merely repeated section 110(b)(2) 

of the New Miner Act and did not articulate MSHA’s interpretation of the statutory provision 

with respect to a repeated failure to eliminate a known violation. 

On October 26, 2006, MSHA issued Procedure Instruction Letter (“PIL”) No. 106-111-

04 setting forth its procedures for evaluating flagrant violations.2 The PIL noted its purpose was 

to: 

establish uniform procedures for Coal and Metal and Nonmental Mine Safety 

and Health enforcement personnel to properly evaluate flagrant violations of 

mandatory safety and health standards as provided in the Mine Improvement 

and New Emergency Response Act of 2006 (MINER Act). 

The PIL outlines the requirements for a violation to be designated as flagrant based on 

a mine operator’s “repeated failure to make reasonable efforts to eliminate a known violation.” 

The requirements are: 

1. Citation or order is evaluated as significant and substantial, 

2. Injury or illness is evaluated as at least permanently disabling, 

3. Type of action is evaluated as an unwarrantable failure, and 

4. At least two prior “unwarrantable failure” violations of the same safety or 

health standard have been cited within the past 15 months. 

PIL No. 106-111-04 (emphasis added).3 

On March 22, 2007, MSHA issued a final rulemaking regarding the criteria and 

procedures for its proposed assessment of civil penalties in 30 C.F.R. Part 100. 72 Fed. Reg. 

13592. Consistent with the prior notice seeking public comment, the final provisions of section 

100.5(e) retained the statutory language in section 110(b)(2) of the New Miner Act without any 

reference to prior violations within a 15 month period, as the basis for a “repeated” flagrant 

violation. Id. at 13622. 

2 PIL No. 106-111-04 apparently was issued prior to the close of the November 9, 2006, 

comment period for proposed rule 100.5(e). 

3

 PIL No. 106-111-04 was followed by PIL No. 108-111-02 issued on May 29, 2008, 

which repeated the same criteria initially established by MSHA for a “repeated” flagrant 

violation. 

33 FMSHRC Page 1728
At issue is the validity of the flagrant violation criteria adopted in MSHA’s PILs. 

Generally, MSHA’s enforcement guidelines and policy memoranda are not binding on the 

Commission. Sec’y of Labor v. D. H. Blattner & Sons, 18 FMSHRC 1580, 1586 (Sept. 1996) 

citing King Knob Coal Company, 3 FMSHRC 1417, 1420 (June 1981). Rather, the Commission 

possesses subject matter jurisdiction under the Act and Commission precedent to consider the 

validity of MSHA policy memoranda in civil penalty contests. Drummond Company, Inc., 

14 FMSHRC 661, 677-78 (May 1992). 

In Drummond, the Commission declined to accord legal weight to Program Policy Letter 

(“PPL”) No. P90-III-4 (May 1990) that applied the Secretary’s civil penalty regulations in 

30 C.F.R. Part 100 to an interim “excessive history” program. Id. at 661. The PPL was not 

given effect because it was not promulgated in accordance with the notice and comment 

provisions of section 553 of the APA. Id at 682; see also King Knob at 3 FMSHRC at 1420-21. 

III. Issues 

A. APA Compliance 

In view of the Commission’s subject matter jurisdiction, articulated in Drummond, the 

parties should address the following: 

“A rule which is subject to the APA’s procedural requirements, but was adopted without 

them, is invalid.” United States v. Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989) citing Chamber 

of Commerce v. OSHA, 636 F.2d 464, 470-71 (D.C. Cir. 1980). Section 553 of the APA requires 

agencies to provide a notice of proposed rulemaking and an opportunity for public comment 

prior to the rule’s promulgation. Section 553(b)(3)(A) provides that the notice and comment 

requirements do not apply to “interpretive rules, general statements of policy, or rules of agency 

organization, procedure or practice.” Specifically, the parties should address: 

(1) Whether the standard for a “repeated” flagrant violation, articulated in 

MSHA’s PIL Nos. 106-111-04 and 108-111-02 is an interpretive rule, or, a 

substantive rule that must be adopted in accordance with section 553 of the APA. 

(2) Assuming MSHA’s PIL standard is a substantive rule, the parties should 

address whether the criteria was adopted in accordance with the provisions of 

section 553 of the APA. The parties should also address the significance of the 

absence of MSHA’s PIL standard for a “repeated” flagrant violation in proposed 

rule 100.5(e) in light of section 553 of the APA. 

33 FMSHRC Page 1729
(3) The Mine Act authorizes the Secretary to promulgate rules in accordance with 

section 553 of the APA, unless there are other permissible means of promulgating 

rules, as manifest by congressional intent. 30 U.S.C. § 811(a); U.S. v. Mead, 533 

U.S. 218, 225 (2001). The parties should address whether the legislative history 

of the New Miner Act authorizes the Secretary to promulgate criteria for 

implementing the flagrant provisions of 110(b)(2) without regard to the notice 

and comment provisions of section 553 of the APA. 

B. Deference 

Assuming adoption of the PIL criteria does not contravene the notice and comment 

provisions of section 553 of the APA, the parties should address: 

(1) Given the vagueness of the term “repeated failure” in section 110(b)(2), 

the parties should analyze whether the PIL criteria is a reasonable interpretation 

of the flagrant violation provisions. Specifically, the parties should address the 

apparently arbitrary choice of two unwarrantable violations of the same safety or 

health standard during the previous 15 month period on the issue of deference. 

The parties should address whether the Chevron “step two” reasonable 

interpretation test articulated in Chevron, U.S.A., Inc., v. Natural Res. Def. 

Council, 467 U.S. 837 (1984), or, the lesser Mead “respect according to its 

persuasiveness” deference standard for agency policy pronouncements should 

apply. 

(2) The parties should address whether the “repeated failure” provision in section 

110(b)(2) refers to a history of similar violations, or, a failure to correct a known 

violation over a significant period of time, such as an uncorrected violative 

condition repeatedly noted in examination books. 

(3) The parties should address the significance, if any, of the absence of a 

specific statutory timeline to support enhanced civil penalties for a repeated 

flagrant violation in 110(b)(2), as compared to the specific timeline for 

unwarrantable withdrawal orders provided in 30 U.S.C. § 814(d) on the questions 

of reasonable interpretation and legislative intent. 

(4) Assuming the reasonableness of two prior unwarrantable violations of the 

same mandatory standard within the past 15 months as the basis for a repeated 

flagrant violation, is it reasonable to consider violations of different provisions of 

a roof control plan to be “violations of the same safety or health standard?” 

33 FMSHRC Page 1730
 

 

ORDER

IT IS ORDERED that the parties should file their responses within 30 days from the 

date of this Order. The parties should provide case law, regulatory provisions, and legislative 

history to support their positions. The parties may provide any relevant additional arguments 

outside the parameters of the above questions, as they deem necessary. IT IS FURTHER

ORDERED that the parties shall have 14 days for replies. 

_ /s/ Jerold Feldman____________

 Jerold Feldman

 Administrative Law Judge 

Distribution: (Electronic and Certified Mail)
	

Christian P. Barber, Esq., U.S. Department of Labor, Office of the Solicitor,
	

618 Church Street, Suite 230, Nashville, TN 37219
	

Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, 707 Virginia Street, East, Eighth Floor,
	

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

/jel 

33 FMSHRC Page 1731
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
	 601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone: (202) 233-3880

Fax: (202) 434-9949
	

July 18, 2011 

ROAD FORK DEVELOPMENT : CONTEST PROCEEDINGS 

COMPANY, INC., :

 Contestant : Docket No. KENT 2009-1523-R 

: Citation No. 8226728; 08/26/2009 

v. :

 : Docket No. KENT 2009-1524-R 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 :

 :

Citation No. 8226729; 08/26/2009 

ADMINISTRATION (MSHA),

Respondent 

:

 :

 :

 :

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA),

Petitioner 

:

 :

Docket No. KENT 2010-69 (settled)

A.C. No. 15-09830-197537 

:

v. :

 :

Docket No. KENT 2010-196 (settled)

A.C. No. 15-19269-200650 

ROAD FORK DEVELOPMENT :

COMPANY, INC., : Docket No. KENT 2010-384 

Respondent : A.C. No. 15-19270-205018 

:

 : Docket No. KENT 2010-577 

: A.C. No. 15-19270-209618 

:

 : Mine: Love Branch South 

ORDER DENYING SECRETARY’S MOTION FOR EXTENSION OF TIME TO FILE
	

ASSESSMENT FOR CIVIL PENALTY PETITION FOR ALLEGED VIOLATIONS OF
	

SECTION 110(c) RELATED TO DOCKET NO. KENT 2010-577
	

ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION OF
	

CONTINUANCE OF HEARING SET FOR AUGUST 2, 2011 AND CONTINUING
	

DATES THEREAFTER 

ORDER EXPRESSLY LIFTING PRIOR STAYS 

The above-captioned dockets concern events that occurred back in August 2009. These 

dockets were originally set for Calendar Call on April 18, 2011. 

On February 18, 2011, the parties in Docket No. KENT 2010-577 filed a joint motion

requesting a 90-day stay of the proceedings in that docket based on the fact that there was a

pending 110(c) investigation related to the 104(d)(1) unwarrantable failure Order in that docket. 

I convened a conference call to discuss the matter and requested that the Secretary’s counsel in

Docket No. KENT 2010-577, Ms. Jennifer Booth, provide a status update as to the 110(c) 

33 FMSHRC Page 1732
investigation by April 18, 2011. Thereafter, by Order dated March 9, 2011, I granted a 90-day

stay in Docket No. KENT 2010-577 until May 19, 2011. 

On March 30, 2011, Ms. Booth wrote my clerk the following e-mail, with copy to

Respondent’s counsel, Ms. Sarah Korwan and Ms. Carol Marunich, and counsel for the alleged

agent in the pending 110(c) investigation, Mr. David Hardy: 

“This is to confirm that Road Fork Kent 1010-577 docket will not be 

handled in the conference call scheduled for 4-18 at 1pm est. This docket 

has an 110c investigation pending. I will let you know when the 110c

investigation is coming to an end and the conference call will be

rescheduled.” 

Thereafter, my clerk informed Ms. Booth that Docket No. KENT 2010-577 would indeed

be discussed in the Calendar Call conference scheduled for April 18, 2011. Thus, on April 18,

2011, the Calendar Call conference was held on the above-captioned dockets. Ms. Booth, the 

Secretary’s counsel in Docket No. KENT 2010-577, indicated that the 110(c) investigation had 

been dropped. Ms. Motsenbocker, the Secretary’s counsel in the remaining dockets, informed

the Court that Docket No. KENT 2010-69 and Docket No. KENT 2010-196 were close to 

settling. The Court was informed that the parties were still negotiating Dockets No. KENT

2010-384 and Docket No. KENT 2010-577, which were somewhat related based on overlapping

electrical issues. Depositions were scheduled for early May 2011. 

On April 19, 2011, Ms. Booth confirmed in an email to the Court with copy to counsel for

the Respondent and counsel for the alleged 110(c) agent that MSHA was no longer pursuing any

110(c) violations in Docket No. KENT 2010-577. On April 20, 2011, I issued a Notice of

Hearing setting all of the above-captioned matters for hearing on May 24, 2011 in Pikeville,

Kentucky. On April 22, 2011, another conference call was held to discuss issues involving the

upcoming hearing scheduled for May 24, 2011. 

On May 2, 2011, counsel for Respondent, requested a conference call and a continuance

of the hearing scheduled for May 24, 2011, after being informed by the Secretary that new

information had come to light and that MSHA had now decided to reverse course and once again

pursue the 110(c) investigation related to Docket No. KENT 2010-577. Counsel for Respondent

also requested that the depositions be postponed in light of this new development. I convened a 

conference call on May 2, 2011 and included counsel for Mr. Smith, the alleged agent in the

pending 110(c) investigation. 

During the May 2, 2001 conference call, I discussed with the parties the fact that I was

inclined to issue an Order to Show Cause why the Section 110(c) proceeding should not be

dismissed for failure to prosecute in a timely manner. I was eventually persuaded by counsel for

the Secretary’s argument that such action would be premature as no Petition for Assessment of

Civil Penalty had yet issued in the 110(c) matter. I expressed my concern, however, that the

events being investigated occurred in August 2009 and that MSHA has had ample time in my

view to complete its investigation and issue its Petition consistent with the liberal 18-month

guideline in the Program Policy Manual. I further expressed my opinion that MSHA’s routine

requests for stays during dilatory investigations of 110(c) cases stymies the expeditious

processing of related cases that would otherwise not become part of the Commission’s backlog. 

At the conclusion of the call, however, I was persuaded by the Secretary’s arguments that

given the current status of the case, the most prudent course of conduct would be to continue the 

33 FMSHRC Page 1733
stay until May 23, 2011, the date that the Secretary indicated would be sufficient to permit

issuance of the Petition. Depositions scheduled for early May were postponed by the parties.

Consistent with Commission Rule 10, the Solicitor made an oral motion to extend the stay of

Docket No. KENT 2010-577 until May 23, 2011 in order to allow MSHA time to issue its 110(c)

Petition. During the call, Mr. Hardy, as counsel for the 110(c) agent, indicated that he would

contest any proposed penalty assessment against his client and file an appropriate pleading once

the Petition in the 110(c) case issued, and he requested that the Court order MSHA to issue its

Petition by May 23, 2001. The parties discussed a new hearing date for these consolidated

matters and a new hearing was scheduled for August 2, 2011 and consecutive days thereafter in

Pikeville, Kentucky. 

On May 6, 2011, I issued an Order Granting [second] Stay and Notice of Hearing until

May 23, 2011, the Secretary’s self-imposed deadline for issuing the Petition. Having duly

considered the arguments raised by the parties during the conference call, I determined that I was

without authority to Order MSHA to issue its petition in the 110(c) matter by May 23, 2011, but

indicated that I would not look kindly on any Petition filed after said date. Accordingly, I

ordered that Docket No. KENT 2010-577 be stayed a second time until May 23, 2011. My order

further indicated that no further requests for stay would be granted. Further, in accordance 

with Section 105(d) of the Federal Mine Safety and Health Act of 1977, the “Act,” 30 U.S.C.

§801, et seq., I ordered that the above-captioned matters and any 110(c) Petition, if viable, would 

be heard on Tuesday, August 2, 2011, and continuing dates after until completed at 8:30 a.m. 

E.S.T. in Pikeville, Kentucky. 

Road Fork and the Secretary filed pre-hearing statements in Docket No. KENT 2010-384

on May 10, 2011. Docket No. KENT 2010-69 and Docket No. KENT 2010-196 settled and my

Decisions Approving Settlement issued on or about June 1, 2011 and have become final Orders

of the Commission. 

On May 23, 2011, notwithstanding my May 6, 2011 Order granting a second and final

stay in Docket No. KENT 2010-577, Ms. Booth, on behalf or the Secretary, filed a Motion for

Extension of Time to File Assessment for Civil Penalty Petition in the 110(c) matter related to

Docket No. KENT 2010-577. The Secretary alleged that Mr. Smith, the intended recipient of the

110(c) petition, was unavailable to accept attempted service of the assessment of civil money

penalty by Federal Express package on May 17 and 18, 2011; that Mr. Smith has 30 days to

contest the proposed penalty assessment under Commission Rule 25; and that until Mr. Smith

contests the proposed penalty assessment, a petition is untimely. The Secretary’s motion

acknowledged, however, that during the May 2 conference call, counsel Hardy stated that Mr.

Smith would contest the proposed penalty assessment, and therefore the Secretary assumed that

Mr. Smith would contest the proposed penalty assessment before the 30-day deadline provided

for in the Commission’s rules. Accordingly, the Secretary’s motion sought some unspecified

amount of “more time to file the petition” based on the argument that “Mr. Smith’s case has not

been prejudiced by the small time delay and there is no reason that the case could not be heard

on August 2nd as per the May 6, 2011 Notice of Hearing and Order to File Pre-Hearing Report.” 

On July 11, 2011, the Secretary finally filed its 110(c) petition, nearly two years after the

events in August 2009. 

A conference call was held with all parties on July 14, 2011. During the conference call,

the Court denied the Secretary’s Motion for Extension of Time to File Assessment for Civil

Penalty Petition in the 110(c) matter, and accordingly deemed the 110(c) petition to be untimely. 

The Secretary indicated that she intended to appeal such Order to the Commission and the Court 

33 FMSHRC Page 1734
indicated that its written order would follow. In addition, counsel for Respondent Road Fork

made an oral motion for a continuance of the August 2 hearing claiming that it had insufficient

time to develop its case for hearing since the prior stay. The Court denied Road Fork’s motion 

for continuance of the hearing and indicated that the hearing would take place as originally

scheduled on August 2, 2011. 

On July 14, 2011, Road Fork filed separate Pre-hearing Statements, with attached

exhibits, for Docket No. KENT 2010-384 and Docket No. KENT 2010-577. 

On July 15, 2011, counsel for Road Fork filed a Motion for Reconsideration of

Continuance of Hearing. In its motion for reconsideration, counsel argues that because the

Secretary failed to timely file its Petition, counsel was under the opinion that this case was still

under the prior stay. Counsel further argues that the “operator is without fault on any delay in

the filing of the special investigation and in fact, was duped by the Secretary when she indicated

in April that she was not going to pursue the special investigation and surprised by the

Secretary’s decision in May that they were going to pursue the special investigation.” Counsel 

requests “reconsideration of this Court’s denial of a continuance of the hearing inasmuch as its

client, Road Fork, will be materially prejudiced since it has not had sufficient time to develop its

case pending the prior stay of the case, as the parties had been waiting for MSHA to proceed on

its 110(c) petition, actions all outside the control of the operator but which now materially

prejudices the presentation of the company case.” In addition, counsel asserts that Road Fork is 

unable to fully prepare its case in this matter without the testimony of Mr. Smith, the subject of

the 110(c) Petition, and requests that this Court postpone the hearing until the time has run on

the Secretary’s appeal of the decision to dismiss the 110(c) case decided on July 14, 2011. 

Counsel for Road Fork further asserts that “[i]f the Secretary fails to appeal or if the Commission

denies any such appeal, then Mr. Smith can testify for the company and that prejudice is gone.” 

Additionally, Road Fork requested a written Order from the Court so it can fully exercise its

option of filing an interlocutory appeal of this matter. 

On July 18, 2011, Road Fork filed a new Pre-Hearing Statement for Docket Nos. KENT

2010-384 and KENT 2010-577. Although the Secretary has already filed a Pre-Hearing

Statement in Docket No. KENT 2010-384, the Secretary apparently has not yet filed a PreHearing Statement in Docket No. KENT 2010-577 and should do so forthwith. 

Having duly considered the positions of the parties, this Court reaffirms its July 14, 2011

oral Order during conference call denying the Secretary’s Motion for Extension of Time to File

Assessment for Civil Penalty Petition in the 110(c) matter related to Docket No. KENT 2010-

577. The Secretary, in her Motion, does not adequately explain why Mr. Smith, the intended

recipient of the 110(c) petition, was unavailable to accept attempted service of the assessment of

civil money penalty and why he purportedly had made himself unavailable for service of the

proposed penalty assessment back in May. More importantly, the Secretary was fully aware that

Mr. Hardy, counsel for Mr. Smith, with whom the Secretary had been dealing, had entered an

appearance representing Mr. Smith during the May 2, 2011 conference call and the Secretary

could have and should have, if it did not, timely serve Mr. Hardy as representative of Mr. Smith,

with the proposed penalty assessment under Commission Rule 7(d) providing for service upon

representative. Moreover, the Secretary did not file her Motion for Extension of Time to File

Assessment for Civil Penalty Petition until May 23, 2011, the date of the Secretary’s selfimposed deadline for filing the actual Petition and the date for lifting of the final stay in this 

matter. Nor have any exigent circumstances been alleged that would permit the motion for

extension. Cf. Commission Rule 9, dealing with motions for extensions of time. In addition, the 

Secretary’s Motion sought some unspecified amount of additional time to file the petition based 

33 FMSHRC Page 1735
on the speculative argument that “Mr. Smith’s case has not been prejudiced by the small time

delay and there is no reason that the case could not be heard on August 2, 2011, as set forth in

the Court’s May 6, 2011 Notice of Hearing and Order to File Pre-Hearing Report.” That is not 

the case, however, as the Secretary did not file her 110(c) Petition until July 11, 2011, depriving

Mr. Smith of his 30 days to answer the Petition under Commission Rule 29, and again permitting

the Secretary to attempt to postpone the August 2 hearing, which was originally set for May. 

Suffice it to say that in management of its docket of nearly 500 cases, the Court will not

countenance the Secretary’s “on-again, off- again” litigation strategy and extensive delay in

investigating and filing its110(c) case based on facts nearly two years old. The Secretary’s

Motion for Extension of Time to File Assessment for Civil Penalty Petition in the 110(c) matter

related to Docket No. KENT 2010-577 is DENIED, ALL PRIOR STAYS ARE HEREBY 

EXPRESSLY LIFTED, and Dockets No. KENT 2010-384 and Docket No. KENT 2010-577 

will be heard on August 2, 2011. If the Secretary prevails before the Commission in any appeal

of the dismissal of the 110(c) matter for failure to timely prosecute, that matter can be heard at a

later date. 

Road Fork’s Motion for Reconsideration of Continuance of Hearing is also DENIED. 

The terms of my May 6, 2011 Order Granting Stay and Notice of Hearing until May 23, 2011

clearly stated that no further requests for stay would be granted. Further, in accordance with 

Section 105(d) of the Federal Mine Safety and Health Act of 1977, the “Act,” 30 U.S.C. §801, et 

seq., I ordered that the above-captioned matters and any 110(c) Petition, if viable, would be

heard on Tuesday, August 2, 2011, and continuing dates after until completed at 8:30 a.m. 

E.S.T. in Pikeville, Kentucky. Therefore, there is no basis for Road Fork’s failure to prepare its

case in Docket No. KENT 2010-577, now nearly two years old, and no basis for counsel to be

laboring under the opinion that this case was still under the prior stay. Road Fork’s extensive 

pre-hearing statements have already been filed in Docket Nos. KENT 2010-384 and KENT

2010-577. Road Fork indicates in its July 18, 2011 Pre-Hearing Statement that the parties have

entered into formal stipulations, which will be submitted on the first day of trial, and Road Fork

has added several witnesses to its earlier Pre-hearing Statements, which include a Mr. Smith, line

crew foreman.1 Furthermore, there is no basis presented why Mr. Smith cannot be present to

testify about the unwarrantable failure issue in Docket No. KENT 2010-577 and therefore no

basis for the material prejudice issue raised by Road Fork, as Mr. Smith is its agent. 

Furthermore, the issue of whether Mr. Smith knowingly authorized, ordered, or carried out the

alleged violations in Docket No. KENT 2010-577 may be relevant to the issue of Respondent’s

knowledge of an obvious and grave danger as a factor in the unwarrantable failure analysis and

Respondent has known or should have known that Mr. Smith would or might be a material

witness in that matter. Finally, trial of Docket No. KENT 2010-577 may prompt settlement of

the 110(c) matter should I be reversed on any appeal. Accordingly, Road Fork’s Motion for

Reconsideration of Continuance of Hearing is DENIED. 

_ /s/ Thomas P. McCarthy____________ 

Thomas P. McCarthy

Administrative Law Judge 

1 The Court has confirmed this date by e-mail from the Secretary, with copy to the 

parties, that line foreman Melvin Keith Smith is the 110(c) agent. 

33 FMSHRC Page 1736
Distribution: 

Robert E. Motsenbocker, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue
	

North, Suite 420, Nashville, TN 37219
	

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219-2456
	

Carol Ann Marunich, Esq. and Sarah G. Korwan, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts

Blvd., Suite 310, Morgantown, WV 22209-2247
	

David J. Hardy, Esq., Allen Guthrie & Thomas, PLLC, 500 Lee St., Suite 800, Charleston, WV

25301
	

/ld 

33 FMSHRC Page 1737
 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

July 28, 2011 

SECRETARY OF LABOR, MSHA, : TEMPORARY REINSTATEMENT

 on behalf of THURMAN WAYNE : PROCEEDING

 PRUITT, : 

Complainant : 

: 

Docket No. KENT 2011-1152-D

MADI-CD-2011-08 

v. :

 :

 : 

GRAND EAGLE MINING, INC.,

Respondent 

: 

: 

Grand Eagle Prep Plant

Mine ID 15-19011 

AMENDED ORDER GRANTING APPLICATION FOR 

TEMPORARY REINSTATEMENT 

Appearances: Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Secretary;

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, Kentucky, on behalf 

of the Respondent. 

Before: Judge Melick 

On July 13, 2011, the undersigned issued a decision and order granting the Secretary’s 

application for temporary reinstatement in the captioned case directing Grand Eagle Mining Inc., 

(“Grand Eagle”) to immediately reinstate Thurman Wayne Pruitt on a temporary basis “to the same 

or equivalent job at the Grand Eagle Prep Plant at the same rate of pay and with the same benefits 

he had at the time of his discharge on March 31, 2011". Respondent has now filed a motion to 

amend the order for temporary reinstatement to permit it to economically reinstate Mr. Pruitt 

pending a decision on the merits of his complaint rather than have Mr. Pruitt return to its property. 

The Secretary, on behalf of Mr. Pruitt, opposes the motion for economic reinstatement and demands 

that he be physically returned to his former job at the mine premises. 

Grand Eagle cites as grounds for its motion that the undisputed evidence at the temporary 

reinstatement hearing demonstrates that Pruitt has established that he is a danger to himself and 

others at Grand Eagle Prep Plant and would continue to be such a danger if allowed to return. Grand 

Eagle notes that Pruitt, by his own admission, backed a 988-caterpillar loader into the tail roller of 

a stacker in January 2011 thereby causing $30,000.00 in property damage. It further notes that on 

March 31, 2011, Pruitt violated company’s rules and Federal safety regulations by working on an 

elevated beltline without locking and tagging it out and at the same time was working at least 20 feet 

above the ground while not wearing fall protection. Grand Eagle notes that Pruitt’s conduct could 

have caused serious injuries or death to him and subjected Grand Eagle to a closure order. It further 

claims that as a result of these admitted activities, Pruitt was fired on March 31, 2011. Grand Eagle 

further argues that the return of Pruitt to mine property would be disruptive and affect the morale 

of the remaining work force. 

I find that in the light of the admitted activities by Mr. Pruitt at the Grand Eagle facility, it 

may reasonably be inferred that he indeed, represents a safety hazard to himself and others and 

33 FMSHRC Page 1738
present a potential financial liability to Grand Eagle if he were to be returned to his former job 

through temporary reinstatement1

. In addition, while no evidence was presented at hearings 

regarding the potentially disruptive nature of Mr. Pruitt’s return to the job site, it may reasonably 

be inferred that the forced temporary reinstatement of Mr. Pruitt would likely have a negative impact 

on the remaining work force. Under the circumstances, I find that temporary economic reinstatement 

is the appropriate remedy and in compliance with section 105 (c)(2) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (“the Act”). Clearly, providing a miner with economic 

reinstatement by paying full salary and benefits fulfills the policy justifications of the Act by 

protecting the miners’ financial well-being while he awaits trial on the merits. 

The Secretary argues that a Commission Administrative Law Judge does not have the 

authority to award temporary economic reinstatement in lieu of actual physical reinstatement. 

However Section 105(c)(2) of the Act grants the Commission broad authority in discrimination 

proceedings “to take such affirmative action to abate the violation as the Commission deems 

appropriate including, but not limited to, the rehiring or reinstatement of the miner to his former 

position with back pays and interest.” Indeed, Commission Judges have regularly ordered economic 

reinstatement in lieu of physical reinstatement in discrimination proceedings. See Secretary on 

behalf of Gatlan v. Ken American Resources Inc., 31 FMSHRC 1050, 1051 (2009); North fork v. 

Mine Safety and Health Administration 33 FMSHRC 589 (2011). 

I find from this language that the commission and its judges therefore have the authority to 

award economic reinstatement in lieu of actual physical reinstatement of the miner pending final 

hearings on the merits. 

ORDER 

The decision and order granting the Secretary’s application for temporary reinstatement is 

hereby modified to permit the miner operator to provide Thurman Wayne Pruitt with economic 

reinstatement to include all the pay and benefits Mr. Pruitt was receiving prior to his discharge on 

March 31, 2011.

 _ /s/ Gary Melick______________

 Gary Melick

 Administrative Law Judge

(202) 434-9977 

1

 In light of the undisputed evidence at hearings that Pruitt also violated mandatory safety 

standards, Grand Eagle could also force mine closure orders and significant civil penalties. 

33 FMSHRC Page 1739
Distribution:(By Certified Mail, and Email)
 

Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618Church Street,
 

Suite 230, Nashville, TN 37219
 

Thurman Wayne Pruitt, 2611 North Elm, Henderson, KY 42420 

Jeffrey Phillips, Esq., Steptoe & Johnson, 1010 Monarch Street, Suite 250, P.O. Box 910810,
 

Lexington, KY 40591-0810 

/to
 

33 FMSHRC Page 1740