i

June 2014

TABLE OF CONTENTS

COMMISSION DECISIONS

06-02-2014 MACH MINING, LLC LAKE 2009-427 Page 1525

06-13-2014 TWENTYMILE COAL COMPANY WEST 2008-788-R Page 1533

06-13-2014 CONNOLLY-PACIFIC COMPANY WEST 2011-1238 Page 1549

COMMISSION ORDERS

06-20-2014 COLD SPRING GRANITE COMPANY CENT 2013-515-M Page 1559

06-20-2014 CLINTWOOD ELKHORN MINING

COMPANY, INC.

KENT 2011-1354 Page 1563

06-20-2014 ALABAMA MARBLE COMPANY, INC. SE 2012-226-M Page 1566

ADMINISTRATIVE LAW JUDGE DECISIONS

06-03-2014 TAFT PRODUCTION COMPANY WEST 2013-908-M Page 1573

06-05-2014 REVELATION ENERGY, LLC KENT 2011-357-R Page 1581

06-06-2014 MARCO CRANE WEST 2012-894-M Page 1610

06-10-2014 TUSCALOOSA RESOURCES SE 2012-490 Page 1615

06-11-2014 POCAHONTAS COAL COMPANY, LLC WEVA 2014-642-R Page 1645

06-12-2014 THE DOE RUN COMPANY CENT 2013-605-M Page 1650

06-18-2014 SEC. OF LABOR O/B/O KEITH

OVERFIELD V. HIGHLAND MINING

COMPANY, LLC

KENT 2014-483-D Page 1659

06-19-2014 BIG RIDGE, INC. LAKE 2012-453-R Page 1677

06-20-2014 GORDON SAND COMPANY WEST 2014-47-M Page 1750

06-23-2014 SAIIA CONSTRUCTION, LLC SE 2010-877-M Page 1752

06-24-2014 SEC. OF LABOR O/B/O ROBERTO

VEGA V. CANTERA EL TUQUE, INC.

SE 2014-300-DM Page 1770
ii

ADMINISTRATIVE LAW JUDGE ORDERS

06-12-2014 OAK GROVE RESOURCES, LLC SE 2013-301 Page 1777

06-23-2014 LESLIE A. PRIDE V. HIGHLAND

MINING COMPANY, LLC. 

KENT 2010-318-D Page 1792

06-24-2014 AUSTIN POWDER COMPANY PENN 2012-116-R Page 1802

06-26-2014 M-CLASS MINING, LLC LAKE 2013-47 Page 1805
iii

Review was granted in the following cases during the month of June 2014:

Pocahontas Coal Company, LLC v. Secretary of Labor, MSHA, Docket No. WEVA 2014-202-R. 

(Judge Miller, May 20, 2014)

Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2008-666, LAKE

2008-667, LAKE 2009-6-A. (Judge Zielinski, May 19, 2014)

Review was denied in the following case during the month of June 2014:

Secretary of Labor, MSHA v. Clintwood Elkhorn Mining Company, Docket Nos. KENT 2011-

1354, KENT 2011-1385 and KENT 2011-1386 (Judge Rae, May 14, 2014)

.

.

COMMISSION DECISIONS
36 FMSHRC Page 1524
1

 The standard at issue, 30 C.F.R. § 75.380(d)(4)(ii), requires that “[w]here the route of

travel passes through doors or other permanent ventilation controls, the escapeway shall be at

least 4 feet wide to enable miners to escape quickly in an emergency.” 

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 or health hazard.”

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW

SUITE 520N 

WASHINGTON, DC 20004

 June 2, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

 : Docket No. LAKE 2009-427 

v. : A.C. No. 11-03141-180760-02 

 : 

 : 

MACH MINING, LLC :

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

 DECISION

BY THE COMMISSION:

In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. § 801

et seq. (2012) (“Mine Act” or “Act”), the Commission, by sua sponte review, directed the parties

to address whether the Administrative Law Judge correctly determined that an escapeway

violation1

 was not significant and substantial (“S&S”).2 33 FMSHRC 2428, 2435-36 (Oct. 2011)

(ALJ). Mach also filed a petition for discretionary review contesting the Judge’s high

negligence finding associated with the escapeway violation. The Commission granted the

petition. For the reasons stated herein, we affirm in result the Judge’s S&S determination, and

we affirm the Judge’s high negligence determination. 

36 FMSHRC Page 1525
3

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

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

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

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

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

I.

Facts and Proceedings Below

During a February 12, 2009 inspection, an inspector with the U.S. Department of Labor’s

Mine Safety and Health Administration (“MSHA”) observed that one of the primary escapeways

of Mach #1 Mine had been narrowed to 26 inches in width. 33 FMSHRC at 2433. This had

been done by closing the regulator on the entryway. A regulator is a concrete wall with a hole

knocked out of it to control the amount and velocity of air going to the section. Id. at n.9. As a

result, the inspector issued a citation for a violation of section 75.380(d)(4)(ii), alleging that the

escapeway was not at least four-feet wide. Id. at 2433.

After a hearing on the merits, the Judge concluded that a violation of section

75.380(d)(4)(ii) had occurred. Id. The Judge found that the violation was not S&S. Id. at 2435-

36. The Judge concluded that Mach’s level of negligence was “relatively high” because Mach’s

president and mine superintendent, Anthony Webb, was aware of the violative condition for a

number of weeks prior to the citation and was subject to a high standard of care as a supervisor. 

Id. at 2435 n.11, 2437-38. 

II.

Disposition

A. S&S

On the S&S issue, both parties agree that the violation is not S&S. Based on the record,

we affirm the Judge in result. 

B. Negligence

The Commission reviews a Judge’s negligence finding, which is a component of a

penalty assessment, to determine whether the factual findings are supported by substantial

evidence3

 and are consistent with the statutory penalty criteria set forth in section 110(i) of the

Mine Act, 30 U.S.C. § 820(i). Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). 

We conclude that the Judge’s finding of relatively high negligence is supported by

substantial evidence. The record demonstrates that the mine president and superintendent,

36 FMSHRC Page 1526
4

 30 C.F.R. § 75.380(d)(4)(iii) provides that an alternate escapeway may be less than

four feet wide if a “stretcher test” is met. The Judge noted that a successful stretcher test was

held by MSHA in an alternate escapeway that had been narrowed to 24 inches. 33 FMSHRC at

2435 n.11. However, this stretcher test provision does not apply to the primary escapeway at

issue here.

Anthony Webb, had knowledge of the narrowed regulator, and that the condition had existed for

approximately two months. 33 FMSHRC at 2437-38; Tr. 81, 86-88. Like the Judge, we reject

Mach’s contention that, because an MSHA inspector had previously traveled through the

regulator at issue, Mach’s negligence should be mitigated. 33 FMSHRC at 2437-38. 

We are not persuaded by Mach’s assertion that the negligence level should be reduced

based on Webb’s mistaken good faith belief that the regulator could be reduced to less than 48

inches in the primary escapeway, if the narrowed regulator passed a stretcher test.4

 As the Judge

stated, Webb must exercise a high standard of care because of his supervisory role, and therefore

Webb’s testimony that he was not aware of the width requirements provided only “slight

mitigation.” Id. at 2438. The Commission has held that supervisors “[can]‘not close their eyes

to violations, and then assert lack of responsibility for those violations because of self-induced

ignorance.’” Douglas R. Rushford Trucking, 23 FMSHRC 790, 793 (Aug. 2001) (citation

omitted). Accordingly, in Prabhu Deshetty, 16 FMSHRC 1046, 1051, 1053 (May 1994), the

Commission affirmed a high negligence determination despite the manager’s claim that he was

not aware of whether the cited conditions were prohibited under the law. See also Rushford

Trucking, 23 FMSHRC at 793 (adhering to the general principle that “ignorance of the law is no

defense.”) 

In sum, we affirm the Judge’s relatively high negligence determination as supported by

substantial evidence in the record.

36 FMSHRC Page 1527
III.

Conclusion

For the foregoing reasons, we affirm in result the Judge’s determination that the

escapeway violation was not S&S and affirm the Judge’s finding of relatively high negligence.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1528
1

 Section 104(d)(1) provides, in pertinent part,

If, upon any inspection of a coal or other mine, an authorized

representative of the Secretary finds that there has been a violation

of any mandatory health or safety standard, and if he also finds

that, while the conditions created by such violation do not cause

imminent danger, such violation is of such nature as could

significantly and substantially contribute to the cause and effect of

a coal or other mine safety or health hazard, . . . he shall include

such finding in any citation given to the operator under this Act.

30 U.S.C. § 814(d)(1) (emphasis added).

Commissioner Cohen, concurring:

I join my colleagues in affirming the Judge’s determination that Mach Mining’s violation

of the safety standard in 30 C.F.R. § 75.380(d)(4)(ii) was the result of relatively high negligence,

and also the conclusion that the violation was not significant and substantial (“S&S”). I write

separately to point out certain fundamental errors in the Judge’s application of the Mathies

criteria to his analysis of the S&S issues in this case.

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

§ 814(d)(1),1 and refers to more serious violations. A violation is S&S if, based on the particular

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

by the violation will result in an injury or illness of a reasonably serious nature. See Cement

Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission set forth a four-step test

for the analysis of whether a violation is S&S:

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

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

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

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

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

of a reasonably serious nature. 

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

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

Mathies criteria). 

36 FMSHRC Page 1529
2

 Regarding the first element of Mathies, the Judge correctly found that Mach Mining

violated the safety standard when it narrowed the escapeway through the regulator from 48

inches to 26 inches. 33 FMSHRC at 2433.

3

 The Commission has described a safety hazard (i.e., the “measure of danger to safety”,

as stated in Mathies) as “the dangerous situation that the mandatory safety standard anticipates.” 

Black Beauty Coal Co., 34 FMSHRC 1733, 1741 (Aug. 2012) (citing Cumberland Coal Res.,

LP, 33 FMSHRC 2357, 2366 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. Cir. 2013); Musser

Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). 

In the present case, the Judge concluded that the Secretary had proved the first two

Mathies elements, but had failed to prove the third element. 33 FMSHRC 2428, 2435-36 (Oct.

2011) (ALJ). In this regard, the Judge stated that the evidence did not establish “the reasonable

likelihood of an injury-producing event”. Id. The Judge’s analysis is erroneous under Mathies

in two important respects.

First, the Judge failed to define or articulate the discrete safety hazard which is necessary

for analysis under both steps two and three of Mathies.2 The description of S&S in section

104(d)(1) of the Mine Act is centered on a “mine safety or health hazard”. Our cases illustrate

that a Judge is required to articulate a discrete safety hazard in order to determine whether the

violation has contributed to it under step two and whether it is reasonably likely to result in an

injury under step three.3 See, e.g., Black Beauty, 34 FMSHRC at 1741; Consolidation Coal Co.,

35 FMSHRC 2326, 2328, 2333, 2335-36, 2338, 2345 (Aug. 2013) (noting, with respect to five

separate violations, how the judge described the discrete safety hazard and approving the Judge’s

articulation of the hazard). The failure of a judge to clearly articulate the discrete safety hazard

in an S&S case impedes the Commission’s ability to perform its review function under section

113(d)(2)(C) of the Mine Act, 30 U.S.C. § 823(d)(2)(C).

Second, the Judge’s analysis under step three of Mathies was flawed. In concluding that

the evidence did not show a reasonable likelihood of an injury producing event, the Judge relied

on two separate lines of testimony – (1) the absence of any obstacles to walking, the fact that the

lifeline was in good shape, and the fact that it was not necessary to raise one’s foot in order to go

from the surface of the overcast through the regulator, and (2) the MSHA inspector’s testimony

that an emergency was not likely to occur as of the time of the inspection, and that “he did not

indicate the specific events or conditions that would be reasonably likely to occur with the

continuance of normal mining operations that would make an injury producing emergency

evacuation reasonably likely to occur.” 33 FMSHRC at 2435. The Judge’s reliance on the 

absence of conditions likely to create an emergency was in error. The mandatory safety standard

at issue, 30 C.F.R. § 75.380(d)(4)(ii), sets forth requirements for escapeways in bituminous and

lignite coal mines. Because an evacuation standard was at issue, the Mathies test does not

require consideration of whether an emergency was likely to occur. See Cumberland Coal, 33

FMSHRC at 2366-67 (“[t]he Commission has never required the establishment of the reasonable

likelihood of a fire, explosion, or other emergency event when considering whether violations of

36 FMSHRC Page 1530
evacuation standards are S&S”). As succinctly stated by the Court of Appeals for the D.C.

Circuit in affirming Cumberland Coal, “the likelihood of an emergency will usually have

nothing to do with the violation of the emergency safety standard.” 717 F.3d at 1027. 

Although the Judge erred in his S&S analysis, I would affirm his ultimate conclusion that

this violation was not S&S. The safety standard in 30 C.F.R. § 75.380(d)(4)(ii) states that

“where the route of travel passes through doors or other permanent ventilation controls, the

escapeway shall be at least 4 feet wide to enable miners to escape quickly in an emergency.” 

The regulator involved in this case is a permanent ventilation control within the meaning of the

regulation. As stated by MSHA inspector Bobby Jones, the discrete safety hazard under step

two of Mathies was that “the narrow opening through the regulator would impede miners

escaping rapidly.” Tr. 28.

I conclude that the record does not contain substantial evidence to support a conclusion

that the violation at issue would contribute to a failure of miners to escape quickly in an

emergency. The inspector testified that he believed that in an emergency if an injured miner had

to be transported out of the mine on a stretcher, miners carrying the stretcher would be delayed

or injured trying to navigate the stretcher and the injured miner through the narrowed escapeway. 

Tr. 32, 35-36, 48. However, the inspector failed to describe with any detail how the narrowed

escapeway would functionally impede the passage of miners with a stretcher. In particular, the

inspector was unaware of the width of the stretchers used by Mach Mining, or how their width

compared with the width of the escapeway as it passed through the regulator. Tr. 70-71. 

Furthermore, the inspector testified that he did not observe any obstructions in the walkways on

either side of the overcast, on the stairs, or on the overcast itself, and that the lifeline was in good

shape. Tr. 64-65. 

Moreover, as the Judge noted, Anthony Webb, the president of Mach Mining, testified

that the mine had previously conducted testing at the request of and in the presence of MSHA

inspectors, and had determined that miners carrying a stretcher were able to navigate through a

24-inch escapeway without difficultly. 33 FMSHRC at 2435 n.11; Tr. 98-99. He explained that

the stretchers used by the operator are constructed with handles or hand holds at either end of the

stretcher. This enables the stretcher carriers to walk in front and behind the stretcher rather than

beside it. 33 FMSHRC at 2435 n.11; Tr. 98-99. This testimony was uncontradicted.

Because the record lacks any evidence that the violation of regulator width would

contribute to a hazard of miners being unable to escape quickly in an emergency, the Secretary

failed to sustain her burden of proof under step two of Mathies. In Cumberland Coal, the

Commission noted that not every violation of an evacuation standard would be S&S, even

though such violations are viewed in the context of an emergency. 33 FMSHRC at 2369. We

observed that if violations of an evacuation standard are “relatively minor in nature and scope, a

fact-finder may well not [find] that the violations contributed to the hazard of miners being

delayed in escaping from the mine in an emergency”. Id. at 2368. This is such a case. 

36 FMSHRC Page 1531
The Judge’s conclusory statement that the second element of the Mathies test was

satisfied lacks evidentiary support. Therefore, the violation was not significant and substantial.

/s/ Robert F. Cohen 

Robert F. Cohen, Jr., Commissioner

Distribution:

Christopher D. Pence, Esq.

Allen Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

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

Administrative Law Judges Avram Weisberger (Retired)

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 1532
1

 Commissioner William I. Althen is recused in this matter.

2

 Section 75.400 provides: “Coal dust, including float coal dust deposited on rockdusted 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.” While Twentymile did not contest the existence of those violations, it did contest the

special findings in the orders and the Secretary of Labor’s proposed penalties.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

 June 13, 2014

SECRETARY OF LABOR, : Docket Nos. WEST 2008-788-R

 MINE SAFETY AND HEALTH : WEST 2008-1093-R

 ADMINISTRATION (MSHA) : WEST 2008-1094-R

 : WEST 2009-333

v. : WEST 2009-579

 : WEST 2009-1174

TWENTYMILE COAL COMPANY :

BEFORE: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners1

DECISION

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

These consolidated proceedings arise under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The case originally involved a

number of citations and orders issued by the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) to Twentymile Coal Company at its Foidel Creek Mine in Colorado. 

32 FMSHRC 1431, 1432 (Oct. 2010) (ALJ). Remaining at issue before the Commission are two

orders that alleged accumulations of coal dust in violation of 30 C.F.R. § 75.400,2 as well as a

citation issued in connection with one of the orders, alleging an inadequate preshift examination

in violation of 30 C.F.R. § 75.360(a)(1). 32 FMSHRC at 1439-48, 1451-56, 1448-51. The

specific issues presented on appeal are whether the Judge properly found that all three violations

were significant and substantial (“S&S”) violations of the Mine Act, and that the violations

underlying the two orders were attributable to Twentymile’s unwarrantable failures to comply

with the standard.

36 FMSHRC Page 1533
3

 Section 103(i) of the Act provides in pertinent part that a coal or other mine liberating

in excess of one million cubic feet of methane or other explosive gases during a 24 hour period is

subject to a minimum of one spot inspection every five working days, and a mine that liberates

in excess of five hundred thousand cubic feet of methane or explosive gases during a 24 hour

period is subject to a spot inspection every 10 working days at irregular intervals. 30 U.S.C. §

813(i).

4

 “Float coal dust” is defined as “coal dust consisting of particles of coal that can pass a

No. 200 sieve.” 30 C.F.R. § 75.400-1(b). This is in contrast with ordinary “coal dust,” which is

defined as “particles of coal that can pass a No. 20 sieve.” 30 C.F.R. § 75.400-1(a); Tr. 205-06. 

Thus, float coal dust is much finer than ordinary coal dust. Inspector Grosely testified that when

he scraped the float coal dust into a pile and touched it, “it flowed like water, a very fluid

material, a very fine-grain material.” Tr. 127. For this reason, it is more explosive than ordinary

coal dust, and hence more dangerous. Tr. 147-48, 201.

5

 The “cans” are steel tubes, filled with aerated concrete. Tr. 285. 

For the reasons that follow, we affirm the Judge’s two unwarrantable failure

determinations and one of his S&S findings, and vacate and remand his other two S&S findings.

I.

Order No. 7622426

A. Factual and Procedural Background

1. MSHA’s Inspection

On March 12, 2008, MSHA Inspector Art Gore visited the Foidel Creek Mine for a

methane spot inspection of its longwall area there. 32 FMSHRC at 1451-52. The mine is

considered to be “gassy,” in that it liberates large quantities of methane.3

 Id. at 1444. 

Consequently, the mine is usually on a 10-day spot inspection cycle. Id. at 1444 & n.3.

While he found no methane problems that day, Inspector Gore observed that the longwall

tailgate was black with dark float coal dust.4

 Gore found that the conditions extended 1700 feet

outby the No. 1 Entry return, with heavy coal dust concentrations on the floor, ribs, and the

“cans” used for supplemental roof support,5

 as well as into the crosscuts. He also determined

that the trickle duster in the tailgate, which should have been blowing rock dust into the air

current so that it would mix with any coal dust, was not working at that time. 32 FMSHRC at

1452, 1454 n.7; Tr. 284-87. According to Gore, the float coal dust he observed was heavy and

triple the amount necessary to establish a violation. 32 FMSHRC at 1452.

In order to determine whether a withdrawal order under section 104(d)(2) of the Mine

Act should issue, Inspector Gore reviewed weekly examination records, preshift examination

36 FMSHRC Page 1534
records, and the “dates, times and initials” he found on the various cards or boards in that area of

the mine indicating that examinations had been done. Id.; Tr. 289-90, 296-97. The weekly

examination book stated that, as of a shift on March 8, 2008, the entire tailgate area for the No. 1

Entry needed rock dusting. Tr. 291. However, Gore noted that the corrective actions taken in

the ensuing three days did not include the area he found to be black with coal dust. 32 FMSHRC

at 1452; Tr. 291-92, 294-95; Gov’t Ex. 21. Because Twentymile had continued mining between

March 8 and 12 and the trickle duster was not operating at the time of his inspection, Gore issued

an order alleging that the coal dust accumulation violated section 75.400, was S&S, and was

attributable to Twentymile’s unwarrantable failure to comply. 32 FMSHRC at 1451-53; Tr. 296-

99, 301. The Secretary later proposed a penalty of $70,000. 32 FMSHRC at 1452.

2. The Judge’s Decision

The Judge concluded that the Secretary had established that the violation was S&S. Id. 

at 1454-55. He found that float coal dust is highly explosive and at its most dangerous when

suspended in the mine atmosphere. The conditions cited therefore posed a discrete safety hazard

contributed to by the conceded violation of section 75.400, particularly given the amount and

concentration of the dust that had accumulated. Id. at 1443-44 (relying on his findings in the

other accumulations violation on review here); 1454. He further found that it was reasonably

likely that a significant methane ignition in the longwall face would cause the float coal dust in

the tailgate to go into suspension. Id. at 1454. He found a reasonable likelihood that such a

methane ignition would occur during the life of the mine, and that the hazard contributed to by

the violation would result in a serious injury or fatality. Id. at 1454-55.

The Judge also concluded that the Secretary had established that the violation of section

75.400 was attributable to Twentymile’s unwarrantable failure, in that it was the result of a

serious lack of reasonable care and aggravated conduct on the part of the operator. Id. at 1455-

56. The Judge’s conclusion was based on his findings that the violation was serious, that it had

existed over a large area of the tailgate over the course of several shifts, and that Twentymile

management was aware of the accumulations and had been put on notice that greater efforts to

comply with section 75.400 were necessary. Id. at 1456. Consequently, the Judge assessed a

penalty of $50,000. Id.

B. Disposition

1. Significant and Substantial

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

§ 814(d)(1), and refers to more serious violations. A violation is S&S if, based on the particular

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

will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum 

36 FMSHRC Page 1535
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). “Substantial evidence” means “‘such relevant evidence as a reasonable

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

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

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

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

Commission further explained:

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (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. 

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

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

Mathies criteria). Under the Commission’s Mathies test, it is the contribution of the violation at

issue to the cause and effect of a hazard must be significant and substantial. U.S. Steel Mining

Co., 6 FMSHRC 1834, 1836 (Aug. 1984). In evaluating that contribution, it is assumed that

normal mining operations will continue. See U.S. Steel Mining Co., 6 FMSHRC 1573, 1574-75

(July 1984); see also U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

Twentymile contends that the record does not support the conclusion that there was a

reasonable likelihood of a fire or methane explosion spreading to the tailgate, and thus

substantial evidence does not support the conclusion that the third element of the Mathies test

was satisfied in this instance. Twentymile argues that the Judge’s reliance on methane ignitions

occurring at the face at some point in the future is misplaced, both because there is no history of

such ignitions at the mine in question, and because there is no evidence that the accumulation of

coal dust would continue to exist for the life of the mine. T. Br. at 30-31.

Our review of the record discloses that substantial evidence supports the Judge’s

conclusions regarding the S&S nature of the accumulations violation at the Twentymile longwall

tailgate.6

 Contrary to Twentymile’s position, the record supports the Judge’s conclusions that,

notwithstanding the mine’s history, there was ample reason to fear the occurrence of a methane

ignition at the face. As Inspector Gore detailed in his analysis of the S&S nature of the violation,

the mine is considered to be “gassy.” Tr. 299. The Judge’s finding that a sudden release of

methane in such a mine can occur without warning is consistent with Commission case law. 

See U.S. Steel Mining, 7 FMSHRC at 1130.

36 FMSHRC Page 1536
7

 The Commission has recognized that a Judge’s credibility determinations are entitled to

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

1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).

8

 Twentymile also argues that the Judge erred in failing to take into account the humidity

in the tailgate area. Its witnesses’ testimony was that in such an environment, dust would not

travel as far as in a less humid environment. Tr. 330. However, that analysis focuses on the dust

produced during the mining process and not whether the humidity would prevent coal dust from

being suspended by a methane ignition. Consequently, we are not persuaded that it was error for

the Judge to do no more than acknowledge the humid conditions, which he did. See 32

FMSHRC at 1454.

9

 As discussed infra, the mine in question had a history of accumulation violations, and

(continued...)

Gore testified about the methane ignition sources that existed at the face and the

likelihood of such an ignition. Tr. 299. In particular, he discussed the sparks produced by the

operation of the longwall shearer and the shearer possibly cutting the quartz present in the

mine’s roof, the fire from the torches used by miners during maintenance shifts, and the sparking

that could occur from roof bolts breaking during a roof fall. Tr. 305, 318. The Judge

specifically credited Gore on this issue (32 FMSHRC at 1454), and nothing in the record gives

us reason to overturn the Judge’s credibility determination.7

We can likewise discern no basis to overturn the Judge’s crediting of Gore over

Twentymile’s witnesses on the issue of the concentration of the rock dust. As it did below,

Twentymile continues to argue that rock dust had mixed with the float coal dust in sufficient

quantities to prevent an explosion. T. Br. at 30-31. In so doing, it ignores the Judge’s findings

that the coal dust accumulations were “heavy” and that rock dusting had not been effective in the

area covered by the order. 32 FMSHRC at 1454.8 In addition, Inspector Gore testified that the

coal dust had accumulated in the cited area to a thickness that was “triple” that which he

considered to constitute a violation of section 75.400. Tr. 286-87.

Finally, we reject the notion that the Judge’s analysis is only reliable if the cited

accumulations remain unaddressed until such time that a methane ignition actually occurs. In

cases involving violations which may contribute to the hazard of methane explosions or

ignitions, the Commission has held that the likelihood of an injury resulting from the hazard only

depends on whether a “confluence of factors” exists that could trigger an explosion or ignition. 

Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). To the extent that Twentymile argues that a

coal dust accumulation can only be S&S if it is shown that the specific cited condition will

continue to exist until a methane ignition actually occurs, we do not read our precedent to erect

such a high bar for the violation of section 75.400 to be S&S. It would be particularly

inappropriate to do so in this case, where the mine may have allowed the conditions to exist for

as many as eight production shifts, with the longwall cutting coal at the face. 32 FMSHRC at

1454; Tr. 291-92. Accordingly, Twentymile’s argument is without merit.9

36 FMSHRC Page 1537
9

(...continued)

there was evidence of inconsistent notations of the need to rock dust coal dust accumulations. 

Moreover, Twentymile chose to start spreading rock dust on the tailgate area accumulations

outby, when the heaviest accumulations were inby. Tr. 301. Given that, we are not persuaded

that the cited accumulations should not be considered S&S because Twentymile would have

addressed them before a methane ignition could occur.

2. 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, 2001 (Dec. 1987), the Commission determined that

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

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.

MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

The Commission has recognized that whether conduct is “aggravated” in the context of

unwarrantable failure is determined by considering the facts and circumstances of each case to

determine if any aggravating or mitigating circumstances exist. Whether the conduct is

“aggravated” in the context of unwarrantable failure is determined by looking at all the facts and

circumstances of each case, including (1) the extent of the violative condition, (2) the length of

time it has existed, (3) whether the violation posed a high risk of danger, (4) whether the

violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the

operator’s efforts in abating the violative condition, and (7) whether the operator had been

placed on notice that greater efforts were necessary for compliance. Consolidation Coal Co., 

35 FMSHRC 2326, 2330 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 

2013); IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 

20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999).

Twentymile takes issue with three of the factors the Judge relied upon in concluding that

the operator’s conduct had been aggravated in this instance. First, it continues to disagree with

Inspector Gore as to the gravity of violation, citing the testimony of its witnesses who did not

view the accumulations in the cited area to constitute a hazard. However, the Judge found Gore

to be much more persuasive than the Twentymile witnesses regarding how heavy the coal dust

was and the extent, if any, to which it had been diluted by rock dust. 32 FMSHRC at 1455. 

Moreover, we have affirmed the Judge’s S&S finding. Consequently, we remain unconvinced

that there are grounds to disturb the Judge’s finding that the violation was serious.

Twentymile also maintains that the Judge erred in finding that it had been put on notice

that greater efforts on its part to comply with section 75.400 were necessary. T. Br. at 23-26, 33-

34. We disagree and find that the record and Commission precedent amply supports the Judge’s

36 FMSHRC Page 1538
10 Our decision in Enlow Fork also disposes of Twentymile’s contention that 45

accumulation citations over the course of the 15 months prior to May 2008 (Tr. 155) did not

provide a sufficient basis to put the operator on notice. In that case, the Commission found that

60 accumulation citations in over two years put the operator on notice that it needed to make a

greater effort to comply with section 75.400. 19 FMSHRC at 16-17.

conclusion. The Secretary relied on previous citations to the operator for violations of the

standard. While the evidence does not specifically identify which of those citations prior to

March 2008 may have been for float coal dust accumulations, the Commission has rejected the

notion that cited accumulations must be of the same material as in previous instances to be

relevant to the question of whether the operator had been put on notice that greater compliance

efforts were necessary. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (Jan. 1997). 

Moreover, Inspector Gore testified that he had had multiple prior discussions with Twentymile

management about accumulations at this mine. Tr. 302.

Moreover, float coal dust is considered so dangerous that it is specifically mentioned in

section 75.400 as a material that an operator must not permit to accumulate. We do not see why

the previous citations under the standard should be discounted in the consideration of a

subsequent serious violation.10 The operator could have drawn a distinction demonstrating an

anomaly but failed to rebut the Secretary’s contention that the prior violations did, in fact, put

the operator on notice.

Finally, we reject Twentymile’s contention that the Judge’s finding of aggravated

conduct is erroneous in light of the evidence that the operator was preparing to rock dust the

cited area. T. Br. at 33. The Judge discussed the operator’s rock dusting efforts, outby the cited

area, that were undertaken after the March 8 notation in the examination book regarding the need

for rock dusting. 32 FMSHRC at 1455. He also credited the testimony of the operator’s

witnesses that before rock dust could be applied by hand in the cited area, Twentymile first had

to install a second row of cans as supplemental roof support along the center of the entry (Tr.

351-54), and that preparations for that project were underway. Id. However, the Judge rejected

the contention that this evidence outweighed the other evidence of aggravated conduct. The

evidence of aggravated conduct included the previously discussed seriousness of the violation;

the geographic extent of the accumulated coal dust; the fact that the condition had been in

existence for at least several shifts, if not longer; the fact that management had been aware of it

since at least March 8; and the fact that management had been put on notice that greater efforts

to comply with the standard were necessary.

In deciding whether an unwarrantable failure has been established, a Judge may

determine that some factors are less important than other factors under the circumstances. 

IO Coal Co., 31 FMSHRC at 1351. Because Twentymile does not dispute the Judge’s findings

on a number of the other unwarrantable failure factors, and substantial evidence supports those

findings as well as the findings which Twentymile does dispute, no basis exists to second guess

36 FMSHRC Page 1539
the Judge’s ultimate conclusion that aggravated conduct on the part of the operator had been

established.

II.

Order No. 6686312 and Citation No. 6686313

A. Factual and Procedural Background

1. MSHA’s Inspection

The order and citation were each issued on May 6, 2008, by MSHA Inspector Barry

Grosely. 32 FMSHRC at 1439, 1448. His review of the mine’s preshift examination books at

the outset of his inspection disclosed entries from the operator regarding accumulations,

including entries from earlier in the week with regard to the No. 3 Entry, the mine’s main

conveyor belt entry. Id. at 1439, 1446; Gov’t Ex. 13.

 The inspector testified that coal was being produced when he arrived at the mine that

morning, but that there had been minimal production on the previous shift. Id. at 1439; Tr. 115,

140-41. His physical inspection of the mine began on the surface, in the transfer building and

the drive building, which resulted in the issuance of three citations for accumulations of float

coal dust and coal fines. 32 FMSHRC at 1439. From there, the inspector traveled into the mine

through the portal for the belt entry. Id. Grosely testified that he immediately noticed

accumulations of float coal dust and, as he traveled further inby, the accumulations became

“more pronounced.” Id.; Tr. 122-23. He estimated that the coal dust had accumulated to a depth

of 1/16th of an inch in some locations, and he described the dust as very fine, and that atop

electrical installations it “flowed like water” when touched. 32 FMSHRC at 1440; Tr. 126-27,

134-35.

The inspector determined that the accumulations extended some 3,400 feet, to Crosscut

34, and were heavier in the crosscuts. 32 FMSHRC at 1439. Grosely explained that with the

entry being on intake air at a rate of 350 feet per minute, most of the rock dust that was being

injected into the entry traveled down the belt line instead of into the crosscuts. Id.

Consequently, Grosely issued Order No. 6686312, alleging an S&S violation of section

75.400 that was attributable to Twentymile’s unwarrantable failure. Id.; Gov’t Ex.10. The order

describes the accumulations as present over the ribs, roof, floor, belt hardware, pipes and hoses,

drive motors, belt structures, and electrical control boxes in the belt entry. 32 FMSHRC at 1439,

Gov’t Ex. 10. The violation was subsequently abated by the application of three tankers of rock

dust, over the course of two shifts, by three to five miners. Tr. 157-59, 239. The Secretary later

proposed a penalty of $50,700 for the violation. 32 FMSHRC at 1439.

Grosely also issued Citation No. 6686313, alleging that the accumulations must have

been present during the most recent preshift examination that included the belt entry, which was

36 FMSHRC Page 1540
11 The citation was originally an order for which the Secretary proposed a penalty of

$50,700, but at the hearing he modified it to a citation under 30 U.S.C. § 814(a), alleging high

negligence. 32 FMSHRC at 1448-49.

conducted between 2:00 and 3:00 that morning, but there was nothing noted about accumulations

in the preshift examiner’s book for that time period. 32 FMSHRC at 1446, 1448; Gov’t Ex. 11. 

The latter citation was also designated S&S, but not unwarrantable.11

2. The Judge’s Decision

Twentymile did not contest MSHA’s allegation that the accumulations constituted a

violation of section 75.400. 32 FMSHRC at 1441. The Judge found that the accumulations of

float coal dust constituted a hazard to miners, particularly because the operator had failed to

apply sufficient rock dust to render the coal dust safe, and because the mine liberates extensive

quantities of methane. Id. at 1443-44, 1450. In light of the evidence that the coal dust had been

deposited over a number of shifts and that the violation was obvious, the Judge concluded that a

reasonably prudent miner would have noted the hazardous accumulation in the preshift

examination book and recommended rock dusting in the area. Id. at 1442, 1450. Because that

did not occur as part of the preshift examination that most recently preceded the MSHA

inspection, the Judge upheld the citation alleging that the preshift exam was inadequate under

section 75.360(a)(1). Id. at 1450.

As to the issue of whether the section 75.400 accumulations violation was S&S, the

Judge rejected the Secretary’s position that the uncontested accumulations violation was S&S

because the rate of frequency of failure of rollers on the belt, as well as the areas of the belt

where the inspector observed the belt rubbing against belt hangers, had the potential to result in

the generation of heat that would ignite the coal dust. Id. at 1443. Taking into account the

“confluence of factors” present, the Judge was not persuaded that in this instance the belt, or its

constituent parts, such as rollers or electrical components, would be a source that would ignite

the coal dust in the area. Id. The Judge also found that there was no methane detected in the

area of the belt, and that it was unlikely that methane would be found in that area of the mine. 

Id. at 1442-43.

 Nevertheless, the Judge concluded that the accumulations violation was S&S. The

Judge focused on the possibility that the float coal dust would be put in suspension in the mine

atmosphere as a result of a methane explosion at the face and the blast force traveling to the area

of accumulations. Id. at 1443-44. The Judge was also concerned that such force could so

severely disrupt the mine’s ventilation system as to cause air to stop flowing through entries,

which would result in the dust remaining in suspension, increasing its volatility. In that event,

the dust could provide fuel for a methane explosion occurring at the face to continue down the

entries for a considerable distance beyond the presence of the methane. Id. at 1444. 

Additionally, the Judge noted that if the float coal dust is placed in suspension, the ignition

sources in the area of the suspended dust could ignite it independent of a methane explosion

36 FMSHRC Page 1541
further inby. Id. at 1444, 1445. Because the Judge found that it is reasonably likely that there

will be at least one serious methane ignition or explosion over the life of a gassy coal mine such

as the Foidel Creek Mine, he concluded that the presence of the accumulated float coal dust

significantly increased the hazard to miners and thus that the violation of section 75.400 was

S&S. Id.

With regard to whether the preshift examination violation was also S&S, the Judge found

that the examiner contributed to a serious safety hazard when he failed to perform an adequate

examination. Id. at 1450. The Judge concluded that this failure prevented a foreman from

knowing of the need to rock dust the No. 3 belt entry, and the hazard contributed to by the

violation would result in an accident in which there would be serious injury. Id.

The Judge also concluded that the accumulations violation was attributable to

Twentymile’s unwarrantable failure, in that the accumulations resulted from aggravated conduct

and a serious lack of reasonable care on the part of the operator. Id. at 1445-48. The Judge did

so on the basis of his findings that the accumulations of float coal dust were obvious, extensive,

and hazardous. Id at 1447. He also found that the accumulations had occurred over the course

of several preceding shifts, yet during those shifts many of the preshift examiners did not

consider the accumulations of float coal dust to be hazardous and did not even note the condition

in the examination book. Id. Finally, the Judge recognized that Twentymile had been cited

about 45 times in the preceding 15 months by MSHA for accumulation violations, and, in

October 2006, had been specifically advised by MSHA that it needed to make greater efforts to

combat float coal dust accumulations in another of its belt entries. Id.

For the accumulations violation, the Judge found the negligence to be high and assessed a

penalty of $50,000. Id. at 1448. For the preshift violation, the Judge concluded that the

negligence had not been shown to have been high, and assessed a penalty of $5,000. Id. at 1451. 

On appeal, Twentymile challenges the Judge’s two S&S findings, his unwarrantable failure

finding with regard to the accumulations violation, and the penalties accordingly assessed, but

does not challenge his finding that the preshift examination conducted was inadequate.

B. Disposition

1. Whether the Violations were Significant and Substantial

As discussed with respect to the earlier accumulations violation, the conclusion of the

reasonable likelihood of a methane ignition at the face during continued normal mining

operations is supported by the record in this case and by Commission precedent. However,

unlike the other accumulations violation, the accumulations at issue here were not near the face,

but a substantial distance away, along the belt as it approached a portal to the mine. The Judge

nevertheless concluded that the force of methane ignition at the face could be sufficient to put

the accumulations in question into suspension, increasing the volatility of the dust and possibly

serving to propagate the initial methane explosion further. He further found that this could

36 FMSHRC Page 1542
increase the likelihood that the dust would be ignited by local ignition sources because the dust

would cover a much greater area of the mine when in suspension. 32 FMSHRC at 1444.

While we agree with the Judge that float coal dust is highly dangerous when put into

suspension, we are constrained by the record in this case regarding how the cited accumulations

could have been put into suspension. The Judge’s conclusion is based on his finding that forces

unleashed by a methane explosion at the face can travel “long distance[s]” down mine entries,

“for a considerable distance beyond the presence of the methane.” Id. Nowhere in the Judge’s

decision, however, does he address how far the cited accumulations were from the face. 

Testimony at the hearing was that the mine’s longwall panels alone were between 10,000 and

20,000 feet in length. Tr. 346. The mine had a belt system that Grosely estimated totaled at

least 12 miles in length, while the operator’s witness stated it was 8-1/2 miles. Tr. 187, 224. At

oral argument before us, the Secretary’s counsel estimated the distance between the longwall and

the accumulations as seven miles. Oral Arg. Tr. 45-46.

There is no record evidence that explosive forces would travel so far in the mine in

question. Both Inspector Grosely, with respect to the instant violation, and Inspector Gore, with

regard to the earlier violation, testified repeatedly regarding the danger posed by coal dust once

it is put into suspension. Tr. 201-02, 204, 299, 307-08, 309. No testimony or other evidence

was presented, however, on whether accumulations along the belt, miles away from the face,

could be put into suspension by a methane explosion or ignition at the face. Because S&S

determinations are based on the particular facts surrounding a violation, we cannot find that

substantial evidence supports the Judge’s conclusion that the accumulations along the belt were

an S&S violation of section 75.400 due to the risk of a methane explosion at the face.

However, the possibility remains that the violation could be characterized as S&S. 

Grosely testified that local forces including air velocity could put the float coal dust into

suspension. Tr. 201. Based on the operator’s preshift reports, he cited that velocity as

approximately 350 feet per minute from the portal into the mine along the belt, and concluded

that this velocity was sufficient to liberate the float coal dust as coal moved along the belt. Tr.

127-28, 200-01. He further identified another source of liberated float coal dust as that fine

material which returns into the mine on the bottom side of the belt when scrapers designed to

clean the belt outside the mine fail to entirely do so. Tr. 128. He testified that, given the speed

at which the belt at issue moves – 800 to 900 feet per minute – such material would tend to dry

and fall off the belt, thus further contributing to the accumulations. Tr. 128-29.

It has long been recognized that a large expanse of float coal dust accumulations, such as

in the instant case, can lead to the dust being put into suspension from normal mining operations. 

In Freeman Coal Mining Co. v. Interior Bd. of Mine Ops. Appeals, 504 F.2d 741, 746-47 (7th

Cir. 1974), the court upheld a decision of the Commission’s predecessor, the Interior Board of

Mine Operations Appeals (“Board”), that float coal dust accumulations of approximately 7,200

feet along a belt in a gassy mine constituted an imminent danger that necessitated the issuance of

36 FMSHRC Page 1543
12 Similar to the present case, at the time of the inspection of the Freeman Coal mine,

there was no concentration of methane. Id. at 746 & n.12.

13 In his initial decision, the Judge appeared to determine that there was such evidence. 

See 32 FMSHRC at 1444 (“[i]n addition, other ignition sources in the immediate area of the coal

dust can ignite the suspended float coal dust.”), 1445 (“[i]n addition, there were ignition sources

in the area that could independently ignite float coal dust if it were suspended in the mine

atmosphere . . .”). Twentymile contends that this conflicts with the Judge’s finding, discussed

below, that there was insufficient evidence to establish that the belt and its parts could serve as

ignition sources. Remand will permit the Judge to further explain his reasoning regarding the

potential local ignition sources for the coal dust upon it being put into suspension.

14 The Secretary is well within his right to do so, because the prevailing party below may

urge in support of the decision under review even those arguments the Judge considered and

rejected. See, e.g., Sec’y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1529

(Aug. 1990).

a withdrawal order.12 In doing so, the court found substantial evidence to support the Board’s

decision that the accumulations constituted an imminent danger, given that the dust is so

lightweight that it can be easily disturbed and suspended into the air during the course of normal

mining operations. See Freeman Coal Mining Corp., 80 Int. Dec. 610, 615, 2 IBMA 197, 211

(1973). The court was persuaded that because coal was being moved by the belt, there was an

increased likelihood that coal dust would be kicked up into the air where it could be ignited by

local ignition sources. 504 F.2d at 746-47 & n.13.

In light of the decisions in Freeman, we are remanding this case to the Judge to review

Grosely’s testimony as well as the remainder of the record and determine whether there is

sufficient evidence to establish that local forces could have put the dust accumulation in the belt

entry and crosscuts into suspension in sufficient amounts to risk a local ignition or explosion. If

so, the Judge will then need to address whether there was sufficient evidence of local sources

that could have ignited the suspended dust.13

The Secretary would have us avoid remand and reverse the Judge’s conclusion that there

was insufficient evidence that the belt or its components could ignite the dust where it had

accumulated.14 The Judge, however, was not persuaded that the ignition sources Inspector

Grosely discussed were either sufficiently intense or located close enough to sufficient quantities

of the dust to result in a fire that would be hazardous to miners. 32 FMSHRC at 1443 (“[t]here is

no evidence that piles of loose coal and coal fines had accumulated under the belt, or under or

near the rollers such that a localized ignition . . . could start a fire that would spread”). We find

that substantial evidence supports the Judge’s conclusion.

The Secretary further points to Grosely’s testimony regarding the existence of coal dust

clinging to the belt rollers, the fact that 65 such rollers fail and thus need replacing during an

average day at the mine, and that there could be a hot spot on the belt from it rubbing against

36 FMSHRC Page 1544
15 Inspector Grosely testified that when rock dust is blown down a main course, like the

belt entry in this instance, the air velocity can be so high that the rock dust bypasses the

crosscuts. Tr. 129.

16 Twentymile also argues that it was possible that the dust had accumulated during the

brief time the mine had resumed production since the last preshift examination. Inspector

Grosely rejected the position that such a large amount of dust could accumulate in such a short

(continued...)

metal components. Tr. 130-31, 133, 139, 142-44, 146. The Judge addressed this evidence, but

found that the operator’s program of frequent replacement of rollers, coupled with the fact that

the rollers or a hot spot on the belt would come in contact with only a small amount of dust,

substantially reduced the likelihood of a fire. 32 FMSHRC at 1443. It was within the province

of the Judge to require evidence of a heat source close enough to sufficient quantities of dust as a

prerequisite to concluding that there was a likelihood of a fire from the accumulations. Here, the

Judge appeared to be presented with evidence that the ignition sources would only come into

contact with a minimal amount of dust, and thus would not pose a risk of igniting the cited

accumulations.

In summary, we vacate and remand for further proceedings the Judge’s findings that the

violations contained in Order No. 6686312 and Citation No. 6686313 were S&S. Should he find

the violations to not be S&S on remand, the Judge will need to reassess the penalties for the

order and citation.

2. Whether the Accumulations Violation Resulted from an Unwarrantable

Failure to Comply

We reject Twentymile’s contention that it was improper for the Judge to consider the role

played by the operator’s preshift examiners in the accumulation of coal dust over such an

undisputedly large area of the belt entry and crosscuts. Twentymile’s argument appears to be

predicated on the belief that there was nothing more than an honest disagreement between those

examiners and MSHA over whether the accumulated coal dust constituted a violation. In

asserting a good faith belief as a defense to an unwarrantable failure charge, however, the

operator must show that the belief was reasonable under the circumstances. IO Coal, 

31 FMSHRC at 1357-58. Here, the overwhelming weight of the evidence credited by the Judge

was that the dust had not been diluted by rock dust and had accumulated over an extensive area,

and thus constituted a violation of the specific prohibition in section 75.400 against the

accumulation of float coal dust. 32 FMSHRC at 1445. Indeed, there is evidence that, because of

the way the mine’s ventilation interacted with the operator’s rock dusting methods,15 the coal

dust that had accumulated in the crosscuts was at its greatest depth, and had been there for

weeks. 32 FMSHRC at 1442; Tr. 123, 127, 141. Consequently, the record supports the Judge’s

treatment of the preshift examiners’ actions and opinions in this instance and demonstrates that

the good-faith-belief argument has no merit.16

36 FMSHRC Page 1545
16(...continued)

period of time (Tr. 141), and the Judge credited his testimony. 32 FMSHRC at 1442. Such an

inference is inherently reasonable, and thus provides further support for the Judge’s

determination that the accumulations occurred over a number of shifts. See Mid-Continent

Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984).

17 Because we are remanding the Judge’s S&S determination with respect to the belt

accumulations violation, Commissioner Young would also remand the unwarrantable failure

determination, because that determination relied in part on the Judge’s S&S determination. The

Chairman and the other Commissioners do not agree that this is necessary, however, given that

so many other unwarrantable failure factors are either conceded by Twentymile, such as the

obviousness and extent of the violative condition, or have been upheld upon review.

We uphold the judge’s finding that Twentymile had been put on notice that greater

efforts on its part to comply with section 75.400 were necessary. We have already rejected some

of the operator’s arguments in our review of the earlier accumulations violation. In the instance

of this cited accumulation, there was even a greater basis for the Judge to find that the operator

should have been making greater efforts to combat accumulations – because the float coal dust

accumulations order previously discussed had been issued just less than two months earlier.

Moreover, the Judge was persuaded by evidence specific to this accumulations order. 

First, Inspector Grosely had issued an unwarrantable failure citation to Twentymile in October

2006 for float coal dust accumulations in the mine’s No. 7 belt entry. 32 FMSHRC at 1447. 

Second, that same month MSHA had notified Twentymile and the other mines in that district

that the agency would be focusing its enforcement efforts on belt lines. Id. While Twentymile

argues that such evidence is too remote in time and nonspecific to put it on notice (T. Br. at 23,

26), we disagree, given that the order at issue here cited Twentymile for float dust accumulations

in a belt entry. See Enlow Fork, 19 FMSHRC at 12 (remanding for Judge to address all relevant

evidence of Secretary and operator on issue of notice). Consequently, substantial evidence

supports the Judge’s finding that Twentymile’s conduct was unwarrantable in this instance based

in part on the notice the operator had received regarding the need to address accumulations

problems at the mine.

Accordingly, we affirm the Judge’s determination that the violation of the standard was

attributable to the operator’s unwarrantable failure.17

36 FMSHRC Page 1546
III.

Conclusion

For the reasons set forth above, we: (1) affirm the unwarrantable failure determinations

for Order Nos. 7622426 and 6686312 and the S&S determination for Order No. 7622426; and

(2) vacate and remand for further proceedings consistent with this decision the S&S

determinations for Order No. 6686312 and Citation No. 6686313.

/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

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1547
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500 

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq. 

Office of the Solicitor

U.S. Department of Labor 

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

Administrative Law Judge Richard W. Manning

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 1548
1

 Scaling involves removing loose rock threatening to break or fall from the mine roof or

walls. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 13, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-1238

v. : A.C. No. 04-00081-260016

:

CONNOLLY-PACIFIC COMPANY :

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

DECISION

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health

Administration (“MSHA”) issued three citations and a section 107(a) withdrawal order to ConnollyPacific Company (“Connolly”), alleging that it did not properly maintain two sections of highwall

at its mine. 

The Administrative Law Judge upheld all three citations and the order. 33 FMSHRC 2270

(Sept. 2011) (ALJ). The Commission granted the operator’s petition for discretionary review. For

the following reasons, we affirm the Judge’s decision. 

I.

Factual and Procedural Background

Connolly has owned and operated the Pebbly Beach stone quarry on Catalina Island,

California, since the 1950s. 33 FMSHRC at 2271. The 480 North and South sections of the quarry

consist of a 300-foot highwall. Connolly’s method of mining involves bringing down rock by

blasting and gathering rock brought down by secondary causes, such as rainfall and gravity. Id.; Tr.

I at 33-36, 49. Connolly maintains that the highwall cannot be scaled. Id. at 2271-72; Tr. I at 33,

34, 49, 72, 84-85.1

 It is undisputed that Connolly has never used benches or scaling in the 480 North

and South sections of the quarry. Id. at 2274-75; Tr. I at 33, 34, 49, 72, 84. Instead, Connolly uses

36 FMSHRC Page 1549
2

 Section 56.3130 provides that:

Mining methods shall be used that will maintain wall, bank, and

slope stability in places where persons work or travel in

performing their assigned tasks. When benching is necessary, the

width and height shall be based on the type of equipment used for

cleaning of benches or for scaling of walls, banks, and slopes.

30 C.F.R. § 56.3130. 

a system of spotters and supervisor observations to determine if any changes have occurred on the

highwall and if it is safe to work under it. Id. at 2273-74; Tr. I at 127, 128, 131, 147. 

Over the years, Connolly has utilized photographs and management inspections to observe

long-term changes in the highwall and predict the fall of material. Id. at 2275. Photographs of the

highwall show cracks and protruding rock above the working area. Id. at 2272; Tr. I at 170.

The talus pile, an accumulation of rock and material that has slid down the highwall, is the

primary work location for the loader operator, who mucks the talus pile back to the toe of the

highwall. Id. at 2274. The loader operator relies on the spotter to warn him in case of a rock fall.

Id. at 2273-74; Tr. I at 145. The South section had a 70-foot tall talus pile at a 45 degree angle of

repose. Id. at 2278; Tr. I at 21-22, 30-31, 65, 221; Tr. II at 18. The North section had no talus pile

but had evidence of tire tracks leading up to the toe of the highwall. Id.; Tr. I at 23. 

On May 24, 2011, MSHA Inspector Chad Hilde issued three section 104(a) citations and a

section 107(a) imminent danger order based on his observation of conditions involving the highwall

sections. 30 U.S.C. §§ 814(a); 817(a); 33 FMSHRC at 2272. Citation No. 8607224 alleged that the

480 South highwall was not properly maintained under 30 C.F.R. § 56.31302

 because the loader

operator was working under a 300-foot highwall at a 72-90 degree slope with loose and

unconsolidated materials, and a 70-foot tall talus pile at a 45 degree angle of repose. 33 FMSHRC

at 2278-79. The citation also alleged that the 480 North section had recent activity under

overhanging material with no action taken by the operator to determine or maintain the stability of

the highwall. 33 FMSHRC at 2278-79. 

36 FMSHRC Page 1550
3

 Section 56.3131 provides that:

In places where persons work or travel in performing their

assigned tasks, loose or unconsolidated material shall be sloped to

the angle of repose or stripped back for at least 10 feet from the top

of the pit or quarry wall. Other conditions at or near the perimeter

of the pit or quarry wall which create a fall-of-material hazard to

persons shall be corrected.

30 C.F.R. § 56.3131. 

4

 Section 56.3200 provides that:

Ground conditions that create a hazard to persons shall be taken

down or supported before other work or travel is permitted in the

affected area. Until corrective work is completed, the area shall be

posted with a warning against entry and, when left unattended, a

barrier shall be installed to impede unauthorized entry.

30 C.F.R. § 56.3200. 

5

 Section 107(a) provides that:

If, upon any inspection or investigation of a coal or other mine

which is subject to this chapter, an authorized representative of the

(continued...)

Citation No. 8607225 alleged a violation of 30 C.F.R. § 56.31313

 in that the highwall above

the talus pile in the South section, which was approximately 230 feet tall, had loose and

unconsolidated material that had not been sloped to the angle of repose. 33 FMSHRC at 2284-85.

In both the North and South sections, the operator was also cited for failing to correct fall-ofmaterial hazards. Id. at 2285.

Citation No. 8607226 alleged that, in violation of 30 C.F.R. § 56.3200,4

 the operator failed

to correct hazardous ground conditions by not posting warning signs or barricading the area to

restrict access. 33 FMSHRC at 2287-88. Although the North section was not currently being

mined, it had no talus pile, and material was cleaned up to the base of the highwall, where there was

evidence of vehicle traffic in the area. Id. at 2287. Connolly did not dispute that it had no warning

signs or barriers, and its safety director testified that the mine had intended to barricade the North

section to keep employees out, but had not had enough time to do so before the inspector’s arrival.

Id. at 2288. 

Withdrawal Order No. 8607223 alleged that an imminent danger existed pursuant to section

107(a) of the Act, 30 U.S.C. § 817(a),5

 and directed Connolly to cease all mining operations in the

36 FMSHRC Page 1551
5

(...continued)

Secretary finds that an imminent danger exists, such representative

shall determine the extent of the area of such mine throughout

which the danger exists, and issue an order requiring the operator

of such mine to cause all persons, except those referred to in

section 814(c) of this title, to be withdrawn from, and to be

prohibited from entering, such area until an authorized

representative of the Secretary determines that such imminent

danger and the conditions or practices which caused such

imminent danger no longer exist.

30 U.S.C. § 817(a). 

6

 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 or health hazard.” 

480 South and North sections of the highwall. 33 FMSHRC at 2290-91. Connolly did not abate the

violations but instead moved its operations to another area of the mine. 33 FMSHRC at 2293. 

The Judge upheld the three citations and the withdrawal order and found that fatal injury was

reasonably likely, that the violations were significant and substantial (“S&S”),6

 and that the

violations resulted from moderate to high negligence. 33 FMSHRC at 2281-84, 2286-87, 2288-90,

2292-93. The Judge raised the penalty amounts from the proposed $555 penalty for two of the three

citations, to $1,000 each for Citation Nos. 8607224 and 8607226, and imposed the $555 penalty

proposed by the Secretary for Citation No. 8607225. Id. at 2293-94. 

The Judge determined that although there is no requirement to use benches to protect miners

from falling material, in the absence of benches “the mine must employ some alternative methods

to maintain stability of the wall.” Id. at 2279. The Judge concluded that a rock fall hazard existed

and had not been corrected in both sections of the highwall. She also concluded that although “the

mine understood that there was a hazardous condition,” the presence of tire tracks at the toe of the

North highwall indicated recent operations in the area. Id. at 2286, 2288. She further found that the

inspector did not abuse his discretion in issuing the imminent danger order because it was reasonable

to believe that a fall of rock or debris was imminent, and neither benching nor scaling could be

conducted due to the extreme height of the highwall. Id. at 2291-92.

II.

Disposition

On review, Connolly argues that the Judge’s findings regarding the instability of the highwall

are not supported by substantial evidence. Connolly contends that the rocks only appeared loose and

36 FMSHRC Page 1552
7

 Connolly further argues in its brief that this enforcement action deprived it of fair

notice and due process. Br. at 31-33. Pursuant to section 113(d)(2)(A)(iii) of the Mine Act and

Commission Procedural Rule 70(g), we do not reach the issue of fair notice and due process

because it was not raised by Connolly in its Petition for Discretionary Review. 30 U.S.C. 

§ 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(g). Connolly mentioned the “reasonably prudent

person” standard with regard to the correct interpretation of the regulations, but specifically

distinguished it from, and did not raise, the issue of fair notice. PDR at 9. 

cracked, and that it is not feasible for it to scale the highwall or construct benches. Connolly claims

that the use of spotters allowed for adequate time to warn the loader operator to move away.

Connolly further argues that the Judge erred in how she applied the standards in question. Finally,

Connolly raises procedural errors purportedly committed by the Judge during the hearing and in

writing her decision. 

A. The Judge Correctly Interpreted and Applied the Standards in Question.

The language of the relevant standards is clear. Sections 56.3130, 56.3131, and 56.3200

state respectively that “[m]ining methods shall be used that will maintain wall, bank, and slope

stability in places where persons work or travel in performing their assigned tasks;” that “conditions

at or near the perimeter of the pit or quarry wall which create a fall-of-material hazard to persons

shall be corrected;” and that “[g]round conditions that create a hazard to persons shall be taken down

or supported before other work or travel is permitted in the affected area.” 30 C.F.R. §§ 56.3130,

56.3131, 56.3200. 

Taken together, these standards require that an operator must maintain highwall stability and

correct hazardous conditions before work or travel takes place. As the Judge found in her decision,

“a reasonably prudent person familiar with the mining industry would recognize the requirements

of the standard.” 33 FMSHRC at 2276-77.7 See, e.g., Spartan Mining Co., 30 FMSHRC 699, 711

(Aug. 2008); Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (question of whether

violation occurred is measured against the standard of whether a “reasonably prudent person”

familiar with the factual circumstances would recognize that a hazard existed within the purview of

the applicable standard). 

Connolly’s method of mining does not comply with the plain language of the standards. It

necessarily involves rock sliding down the highwall to be removed by the loader operator. This

method does not maintain wall stability; Connolly instead utilizes a spotter to warn the loader

operator when the wall is unstable. Similarly, Connolly’s reliance on a spotter to timely warn the

loader operator and the operator’s supposed ability to move away in time before getting hit by rock

fall does not constitute a correction of the fall-of-material hazards. 

MSHA’s prior lack of enforcement of these standards at the mine does not demonstrate an

absence of violations or hazardous conditions. Connolly argues that in more than 50 years of using

this method of mining, it never had an accident caused by rock falls, and it had never been cited by

36 FMSHRC Page 1553
8

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

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

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

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

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

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

9

 Johnson recognized that rainfall can cause rock falls which occur days or even weeks

after the actual rainfall. Tr. II at 116; 33 FMSHRC at 2284. 

MSHA. However, this historical account cannot be used to prevent MSHA or this Commission from

enforcing clearly written standards. See Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007) (a

past inconsistent enforcement pattern by MSHA inspectors does not prevent MSHA from

proceeding to apply the correct interpretation of a standard). 

B. Substantial Evidence Supports the Judge’s Findings Regarding Highwall Stability.

We further conclude that substantial evidence supports the Judge’s determination that the

mining methods used by Connolly do not maintain highwall stability in conformity with the

standards.8

 Relying on photographs taken at the mine, and the expert testimony of the MSHA

inspector and engineer, the Judge found that cracked pieces of rock and loose material overhung the

loader operator’s working area. 33 FMSHRC at 2272, 2279. 

Although the Judge “relied upon the expert testimony of both parties” (id. at 2279), she

found the “Secretary’s witnesses to be more convincing, reliable and objective.” Id. at 2281.

MSHA engineer Steven Vamossy accompanied inspector Hilde on May 24, 2011. Id. at 2272.

Vamossy testified that there was a potential for sliding or toppling of smaller slabs of rocks, and that

the highwall is a hazard in its present condition. Id. at 2280-81. Connolly’s expert, engineer Jeffrey

Johnson, testified that a hazard only comes into play when a secondary force, such as an earthquake

or rain, is added into the equation. Id. at 2280-81; Tr. II at 111-12.9

 The Judge found “Vamossy’s

conclusions regarding the condition of the highwall to be consistent with the photographs and the

general tenor of the testimony of all witnesses. . . . While Johnson and his team also viewed the

area, Vamossy did it with an eye to mine safety, unlike the engineers for the operator who have no

experience in the mining industry.” Id. at 2281. 

The Commission has recognized that a Judge’s credibility determinations are entitled to great

weight and may not be overturned lightly. Consolidation Coal Co., 35 FMSHRC 2326, 2329 (Aug.

2013) (citations omitted). We find no evidence in the record that compels us to take the

extraordinary step of overturning the Judge’s credibility determinations. See Farmer v. Island Creek

Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992). Therefore, we affirm the Judge’s conclusion that

Connolly’s mining methods do not maintain the stability of the highwall. 

36 FMSHRC Page 1554
C. The Judge Properly Concluded that the Inspector Did Not Abuse His Discretion in

Issuing the Imminent Danger Order.

Section 107(a) of the Act provides in relevant part that if an MSHA inspector “finds that an

imminent danger exists, [the inspector] shall . . . issue an order requiring the operator of such mine

to cause all persons . . . to be withdrawn from” the relevant area until the danger no longer exists.

Section 3(j) defines an “imminent danger” as a condition “which could reasonably be expected to

cause death or serious physical harm before such condition or practice can be abated” (emphasis

added.) 30 U.S.C. § 802(j). The Commission has held that “there must be some degree of

imminence to support a section 107(a) order.” Utah Power and Light Co., 13 FMSHRC 1617, 1621

(Oct. 1991). It further explained that “imminent” means, among other things, “impending . . . :

hanging over one’s head: menacingly near.” Id. (citation omitted). However, “[t]he concept of

imminent danger is not limited to hazards that pose an immediate danger.” Cumberland Coal Res.,

LP, 28 FMSHRC 545, 555 (Aug. 2006), aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 515

F.3d 247 (3rd Cir. 2008). 

An inspector’s issuance of a section 107(a) imminent danger order is reviewed under an

“abuse of discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-47 (Mar. 1993); Utah

Power, 13 FMSHRC at 1627. A section 107(a) order will be upheld if the Secretary proves by a

preponderance of the evidence that the inspector reasonably concluded that an imminent danger

existed. Island Creek, 15 FMSHRC at 346-47. 

Connolly’s main argument has been that the condition of the highwall cannot feasibly be

abated, and that is the reason for Connolly’s mining method and precautionary measures. Although

it may seem unusual that a condition which has been in place for many years can one day be cited

as an imminent danger, the circumstances here involve extremely hazardous conditions which

cannot be abated within the meaning of section 3(j). 

Inspector Hilde testified that the operator did not maintain the stability of the highwall and

that the top of the wall had loose and unconsolidated materials and boulders. 33 FMSHRC at 2278,

2282; Tr. I at 24-25, 48-51. Hilde further testified that the spotter system “does not stop or mitigate

the likelihood of material coming off the wall. It just lets the guy watch it happen.” Tr. I at 82.

Hilde explained that he issued the section 107(a) order because of the overhanging material and --

regarding the 480 North section -- “because it was imminent that someone could go back there to

work.” Tr. I at 29. The Judge found it was reasonable for the inspector to “believe that a fall of rock

or debris was imminent, thereby threatening the safety of the miners working below.” 33 FMSHRC

at 2292. We conclude that substantial evidence supports the Judge’s conclusion that the inspector

did not abuse his discretion. Given Connolly’s mining method and the extraordinary height of the

highwall, abatement of the hazardous condition was not possible. 

D. The Operator’s Procedural Error Arguments Lack Merit.

We reject Connolly’s contention that the Judge committed procedural errors in not allowing

its expert witness to answer certain questions, and by enforcing time limits on some cross36 FMSHRC Page 1555
10 Citing Christopher Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control

Issues for Safety Professionals, in Mine Health and Safety Management 365 (Michael Karmis

ed., 2001).

examinations. Upon review of the record, we find that the Judge’s rulings during the hearing were

within her discretion and did not constitute prejudicial procedural error. See Medusa Cement Co.,

20 FMSHRC 144, 150 (Feb. 1998) (citing Desjardins v. Van Buren Community Hospital, 969 F.2d

1280, 1282 (1st Cir. 1992) (judge’s request that counsel not be repetitive and follow proper

procedures in asking questions was not an abuse of discretion)). 

We further conclude that the Judge’s reliance on an extra-record publication in her decision

was, at most, harmless error due to the general applicability of the principles mentioned by the Judge

and the discussion of these principles during the hearing. The Judge “[took] notice of a number of

MSHA and NIOSH publications that describe highwall stability and generally refer to a wall that

is up to 100 feet high as the outer limit of acceptable height.” 33 FMSHRC at 2282. The Judge then

quoted and cited a publication discussing general good practices of highwall stability and the

dangers inherent to highwalls of great height. Id. at 2282, 2284.10 In any event, the Judge

introduced the cited publication at the hearing and questioned a witness about the publication’s

conclusions without objection from Connolly. Tr. II at 143-44. 

Connolly’s argument that it was deprived of the opportunity to address principles regarding

the outer limit of acceptable highwall height is likewise without merit. Id. at 2276; Br. at 30-31.

We note that the record includes discussion of this topic during the hearing. See Tr. I-175

(discussing the Oregon Rockfall Study addressing highwalls up to 80 feet high and concluding that

higher slopes produce more variable rockfalling distances); Tr. I-77 (asking the inspector if “there

was no outright prohibition of having a 300 foot highwall”); Tr. II-157 (emphasizing that the Oregon

Study’s lack of research beyond 80-foot highwalls does not indicate the maximum safe height of a

highwall). This discussion indicates that both parties were aware that the highwall in this case was

uncommonly high, that this highwall’s height was at issue, and that generally most highwalls did

not exceed 100 feet. Therefore, the issue was directly raised, and Connolly had the opportunity to

respond.

36 FMSHRC Page 1556
III.

Conclusion

For the foregoing reasons, we affirm the Judge’s decision. We conclude that the operator

did not comply with the standards in question and did not correct hazardous conditions before

permitting its employees to work under the highwall. We also find that the record supports the

Judge’s conclusion that the hazardous conditions presented an imminent danger. 

/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

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1557
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

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 1558
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 20, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-515-M

v. : A.C. No. 41-00070-317641-02

:

COLD SPRING GRANITE COMPANY :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On May 29, 2013, the Commission received from Cold

Spring Granite Company (“Cold Spring”) a motion seeking to reopen a penalty assessment that

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

U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

practicable by the Federal Rules of Civil Procedure”); 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).

36 FMSHRC Page 1559
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment, containing 17 penalties, was delivered on

April 9, 2013. Cold Spring timely contested four of the penalties and paid the remaining 13

penalties. Two of the contested citations were issued for alleged violations at Cold Spring’s shot

saw shop. Cold Spring avers that it originally contested those citations because it believed that

MSHA lacks jurisdiction over the shop. It now seeks to reopen seven of the 13 uncontested

penalties, stating that these citations also relate to the shot saw shop.

The Secretary opposes the motion to reopen, stating that Cold Spring made

knowledgeable decisions regarding which citations to contest. The Secretary contends that Cold

Spring’s subsequent “change of mind” does not constitute a “mistake, inadvertence, surprise or

excusable neglect” that justifies the reopening of uncontested citations. Sec’y’s Opposition at 4

(citing Ackermann v. United States, 340 U.S. 193, 198 (1950)). In response, Cold Spring asserts

that it timely contested two citations issued for alleged violations at the shop and inadvertently

failed to contest seven others because it did not initially recognize that those citations involved

occurrences at the same shop. 

Certainly, “[a] change of mind is not adequate grounds to reopen a final judgement

pursuant to Rule 60(b).” Brzeczek v. Centerior Energy, 2000 WL 875744, No. 99-3900, slip op.

at 1-2 (6th Cir. June 20, 2000). See, e.g., Ackermann v. United States, supra. In this case,

however, Cold Spring has demonstrated that it originally intended to challenge all the citations

originating from the inspection of the shot saw shop. Its failure to contest the seven citations at

issue was the result of a mistake. After discovering its mistake, Cold Spring promptly sought

reopening of the citations.

36 FMSHRC Page 1560
Having reviewed Cold Spring’s requests and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1561
Distribution:

Gary L. Vischer, 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

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1562
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 20, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket Nos. KENT 2011-1354

 ADMINISTRATION (MSHA) : KENT 2011-1385

 : KENT 2011-1386 

v. :

 :

 :

CLINTWOOD ELKHORN MINING :

 COMPANY, INC. :

ORDER

 A petition for discretionary review was filed by Clintwood Elkhorn Mining Company, Inc.

on June 16, 2014. This petition was filed pursuant to section 113(d)(2) of the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. § 823(d)(2). Section 113(d)(2)(A)(1) of the Mine Act states that

a petition for discretionary review by the Commission may be filed within 30 days after the issuance

of the judge’s decision. 30 U.S.C. § 823(d)(2)(A)(1).

The judge’s decision was issued on May 14, 2014. Any petition for discretionary review was

due 30 days thereafter, on June 13, 2014. Although the judge filed an amended decision on May 15,

2014, correcting a clerical error, Commission Procedural Rule 69( c) states that the issuance of an

amended decision correcting a clerical error shall not toll the time for filing a petition for

discretionary review of the judge’s decision on the merits. 29 C.F.R. § 2700.69( c). Thus the 30-

day time limit for filing the petition started to run from May 14 (the date of the initial decision)

rather than from May 15 (the date of the amended decision).

36 FMSHRC Page 1563
1

 Separately, we note that no two Commissioners would have voted to grant the petition

on the merits.

The petition for discretionary review is therefore denied. Consequently, the decision of

Administrative Law Judge Priscilla M. Rae dated May 14, 2014, is final as of 40 days after its

issuance. 30 U.S.C. § 823(d)(1).1

/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

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1564
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

Administrative Law Judge Priscilla M. Rae

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 1565
1

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

consolidate docket numbers SE 2012-226-M, SE 2012-560-M, SE 2013-525-M, SE 2013-526-

M, and SE 2013-527-M, all captioned Alabama Marble Company, Inc., and involving similar

procedural issues. 29 C.F.R. § 2700.12.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 20, 2014

SECRETARY OF LABOR, : Docket No. SE 2012-226-M

 MINE SAFETY AND HEALTH : A.C. No. 01-02947-277361

 ADMINISTRATION (MSHA) :

: Docket No. SE 2012-560-M

: A.C. No. 01-02947-291433

:

: Docket No. SE 2013-525-M

: A.C. No. 01-02947-308350

:

: Docket No. SE 2013-526-M

v. : A.C. No. 01-02947-318268

:

: Docket No. SE 2013-527-M

ALABAMA MARBLE COMPANY, INC. : A.C. No. 01-02947-321067

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

ORDER

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

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

§ 801 et seq. (2012) (“Mine Act”). On July 26, 2013, the Commission received from Alabama

Marble Company (“AMC”) a motion seeking to reopen a penalty assessment proceeding and

relieve the operator from the Default Order entered against it, reopen a Decision Approving

Settlement, and reopen three 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

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that in Docket No. SE 2012-226-M, Chief Administrative Law Judge Robert

J. Lesnick issued on October 24, 2012, an Order to Show Cause which by its terms became a

Default Order if the operator did not file an answer within 30 days. The Commission did not

36 FMSHRC Page 1566
receive AMC’s answer within 30 days, so the default order became effective on November 26,

2012. The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. §

2700.69(b). MSHA mailed a delinquency notice on March 20, 2013. 

In Docket No. SE 2012-560-M, Administrative Law Judge Thomas P. McCarthy issued a

Decision Approving Settlement on March 20, 2013. Under the Mine Act and the Commission’s

procedural rules, relief from a judge’s decision may be sought by filing a petition for

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

2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it

becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the judges’

Order and Decision here have become final orders of the Commission.

In Docket No. SE 2013-525-M, the proposed assessment was delivered on December 10,

2012, and became a final order of the Commission on January 9, 2013. MSHA mailed a

delinquency notice on February 25, 2013. In Docket No. SE 2013-526-M, the proposed

assessment was delivered on April 17, 2013, and became a final order of the Commission on

May 17, 2013. MSHA mailed a delinquency notice on July 2, 2013. In Docket No. SE 2013-

527-M, the proposed assessment was delivered on May 15, 2013, and became a final order of the

Commission on June 14, 2013. 

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. 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).

AMC asserts that it delegated the contest responsibility to a third party and recently

discovered that “nothing was ever done to contest and defend the charges.” Mot. at 1. The

Secretary of Labor opposes the requests to reopen and asserts that the operator identified no

exceptional circumstances warranting reopening. The Secretary notes that this operator has been

in business for many years and is familiar with MSHA procedures. The Secretary further states

that the inadequate monitoring of MSHA assessments and lack of communication between the

operator and its representative indicates an inadequate and unreliable processing system. In light

36 FMSHRC Page 1567
of the operator’s claim of financial difficulties, the significant amount of proposed assessments,

totaling almost $80,000, should have made the operator more diligent in pursuing a possible

appeal.

In response to the Secretary’s opposition, AMC explains that it hired a representative and

regularly paid him for the work it believed he was doing in these cases. AMC asserts that it is

having financial difficulties and could not afford to hire an attorney. Therefore, it relied on the

work of the representative and agreed to temporarily make payments in order to avoid further

penalties and collection charges. 

Having reviewed AMC’s request and the Secretary’s response, we conclude that AMC

had an opportunity to be heard in Docket No. SE 2012-560-M, we therefore deny its motion to

vacate the Decision Approving Settlement. In the interest of justice, we hereby vacate the

Default Order in Docket No. SE 2012-226-M, and reopen the proposed penalty assessments in

Docket Nos. SE 2013-525-M, SE 2013-526-M, and SE 2013-527-M. Accordingly, Docket Nos.

SE 2012-226-M, SE 2013-525-M, SE 2013-526-M, and SE 2013-527-M are remanded to the

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

Commission’s Procedural Rules, 29 C.F.R. Part 2700. 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 G. Young 

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1568
Commissioner Cohen concurring in part and dissenting in part:

On July 26, 2013, Alabama Marble filed a motion requesting that the Commission 

(1) vacate a Decision Approving Settlement, (2) reopen three cases involving citations that had

become final orders because Alabama Marble neglected to contest their respective penalty

assessments, and (3) vacate an Order of Default entered after it failed to file an Answer to a

penalty petition. Alabama Marble contends that the motions should be granted because the

consultant and attorney it hired to represent it in proceedings under the Mine Act failed to take

adequate steps to “contest and defend the charges.” Mot. at 1-2.

For the reasons that follow, I dissent from my colleague’s conclusions in part. I would

deny Alabama Marble’s motion to reopen the cases docketed as SE 2013-525-M and SE 2012-

226-M and remand these proceedings to the Chief Administrative Law Judge for further factfinding. 

1) The motion to vacate the Decision Approving Settlement of the case docketed

as SE 2012-560-M.

On February 12, 2013, the Secretary filed a motion to approve a settlement agreement for

the case docketed as SE 2012-560-M and represented that “[Alabama Marble] has reviewed this

motion, [and] has agreed to its terms.” Mot. at 1. Alabama Marble did not indicate any

disagreement with this statement. On March 20, 2013, a Judge issued a Decision Approving

Settlement.

Because Alabama Marble consented to the underlying settlement agreement, I agree with

the majority’s decision to deny the motion to vacate the Decision Approving Settlement.

2) The motion to reopen the cases docketed as SE 2013-525-M, SE 2013-526-M,

and SE 2013-527-M.

The cases docketed as SE 2013-525-M, SE 2013-526-M, and SE 2013-527 became final

after Alabama Marble failed to timely contest the Secretary’s proposed penalty assessments for

the subject citations. Alabama Marble filed its motion to reopen these cases on July 26, 2013. 

The motion was filed shortly after the Secretary issued a notice of delinquency for the case

docket as SE 2013-526-M (July 2, 2013), and shortly after the case docketed as SE 2013-527-M

became final (June 14, 2013). Because the record demonstrates that the operator reacted

promptly after it learned that the proposed assessments were mistakenly ignored, I conclude that

there is adequate cause to reopen these two proceedings.

However, Alabama Marble did not show the same expeditiousness in its request to

reopen the case docketed as SE 2013-525-M. In this case, a delinquency notice was mailed on

February 24, 2013, a full five months prior to the filing of the motion to reopen.

36 FMSHRC Page 1569
Under Rule 60(c), a motion to reopen, regardless of its merit, is only granted if it is filed

within a reasonable time. In the context of penalty assessments, in considering whether an

operator has unreasonably delayed in filing a motion to reopen, the Commission considers the

amount of time that passes between an operator’s receipt of a delinquency notice and the

operator’s filing of its motion to reopen. Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov.

2009); Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009).

I conclude that Alabama Marble’s motion lacks sufficient details to establish the

extenuating circumstances necessary to justify the reopening of the case docketed as SE 2013-

525-M.

3) The motion to vacate the Order of Default issued for the case docketed as 

SE 2012-226-M.

Alabama Marble timely contested the proposed assessment issued for the citation at 

issue in the case docketed as SE 2012-226-M. However, it subsequently failed to file an Answer

to the Secretary’s Penalty Petition as required by Commission Procedural Rule 29, 29 C.F.R. 

§ 2700.29. On October 24, 2012, the Chief Administrative Law Judge issued an Order to Show

Cause stating that Alabama Marble would be in default if it failed to file an Answer within 30

days. Alabama Marble again failed to file an Answer. On March 20, 2013, the Secretary mailed

a notice to delinquency to Alabama Marble. 

Alabama Marble waited an additional four months after receiving the notice of

delinquency to file the motion to vacate the Order of Default. The operator’s motion fails to

provide details that justify its significant delay. Accordingly, I conclude that Alabama Marble

has failed to demonstrate good cause to vacate the default order. 

Conclusion

In summation, I concur with the majority’s denial of the motion to vacate the Decision

Approving Settlement issued for the case docketed as SE 2012-560-M and its grant of the motion

to reopen the proceedings docketed as SE 2013-526-M and SE 2013-527-M.

However, I conclude that Alabama Marble has failed to establish that its delay in filing a

motion to reopen the cases docketed as SE 2013-525-M and SE 2013-226-M was reasonable. 

While Alabama Marble faults a consultant and an attorney it hired for the defaults, it does not

account for its failure to act for five and four months respectively, after receipt of multiple

documents from the Secretary which stated that further action was necessary on its part.

36 FMSHRC Page 1570
Therefore, I would remand the cases docketed as SE 2013-525-M and SE 2012-226-M to

the Chief Administrative Law Judge for further fact-finding regarding the cause of the delay in

filing the motions to reopen.

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 1571
Distribution:

Stephen Musolino, President 

Alabama Marble Co., Inc. 

3400 N.W. 78TH Ave., 

Miami, Florida 33122

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

Administrative Law Judge Thomas P. McCarthy 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20004-1710

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1572
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-3577 / FAX: 303-844-5267 

June 3, 2014 

 

DECISION AND ORDER

Appearances: Daniel Brechbuhl, Esq., Department of Labor, Denver, Colorado, for 

Petitioner; 

 Larry R. Evans, Corporate Health & Safety Manager, Oil-Dri Corporation 

of America, Ochlocknee, Georgia, for Respondent. 

Before: Judge Manning 

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

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Taft Production Company, 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 Los Angeles, California and filed posthearing briefs. A total of four section 104(a) citations were adjudicated at the hearing.1

 Taft 

Production mines and produces clay for use in kitty litter and other products. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation No. 8697954

On April 23, 2013, MSHA Inspector Eric Wiedeman issued Citation No. 8697954 under 

section 104(a) of the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s 

safety standards. (Ex. G-3). The citation states that there was a pile of material at the entrance to 

the 101 conveyor tunnel. The material was approximately 2 feet by 2 feet and ranged from 6 

inches deep to 1 1/2 feet deep. The material consisted of small granules and dust. The citation 

alleges that miners are in the area to inspect and clean. Inspector Wiedeman determined that an 

injury was unlikely to occur, but that such an injury could reasonably be expected to result in lost 

 1

 This proceeding was originally designated for simplified proceedings under 29 C.F.R. § 

2700.102(a). By order dated November 26, 2013, I removed the case from simplified 

proceedings and it was tried under the Commission’s conventional rules. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

TAFT PRODUCTION COMPANY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2013-908-M 

A.C. No. 04-02964-323504 

Taft Production Company & Mines 

36 FMSHRC Page 1573
workdays or restricted duty. He determined that the operator’s negligence was moderate, and 

that one person would be affected. Section 56.20003(a) of the Secretary’s safety standards 

requires “workplaces, passageways, storerooms, and service rooms shall be kept clean and 

orderly[.]” 30 C.F.R. § 56.20003(a). The Secretary proposed a penalty of $100.00 for this 

citation. 

For the reasons set forth below, I modify Citation No. 8697954 to be the result of 

Respondent’s low negligence. 

Discussion and Analysis

 I find that Respondent violated section 56.20003(a) because it failed to keep a 

passageway clean. Both Inspector Wiedeman and Nick Kingston, a miner representative for 

Respondent, agreed that a pile of material existed at the 101 conveyor tunnel. (Tr. 13, 73; Ex. R1). Respondent argues that the cited area was not a workplace or passageway because no miners 

would work there before the area was cleaned.2

 I find, however, that the area was intended for 

use by miners for walking. Miners accessed the cited area to grease conveyor lines on a weekly 

basis. (Tr. 20, 79). Inspector Wiedeman testified that the cited area was the only route to access 

the grease lines. (Tr. 14). I reject Respondent’s argument that weekly use of the area is not 

frequent enough to constitute a passageway; the cited area was not accessed while the condition 

existed but the area was a passageway. Based upon the consistent testimony from both the 

inspector and Kingston, I find that the area was a passageway or work area; miners accessed the 

area to grease lines or passed through the area in order to access the lines. The area was not 

clean. (Ex. R-1). A trip or fall leading to a sprain was unlikely, but possible. Respondent 

violated section 56.20003(a).3

 I find that the violation was the result of Respondent’s low negligence. The inspector 

testified that the condition existed for two days. (Tr. 15). Miners accessed the area to grease 

lines, but not while the conveyor operated and only on a weekly basis. (Tr. 79-80). The 

condition posed little danger and it is likely that no miners knew about the condition. (Tr. 20). 

Citation No. 8697954 was the result of Respondent’s low negligence. I MODIFY Citation No. 

8697954 to reduce the negligence. A penalty of $400.00 is appropriate for this violation. 

B. Citation No. 8697955

On April 23, 2013, Inspector Wiedeman issued Citation No. 8697955 under section 

104(a) of the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s safety 

 2

 Respondent cites Alan Lee Good to show that an area accessed only for maintenance is 

not a passageway. 23 FMSHRC 995, 1000 (Sept. 2001). Respondent, however, misconstrues 

the holding in that case. The Commission found that the cited area was not accessed or used to 

walk upon during maintenance, not that miners walking in the area for maintenance did not make 

an area a passageway. 

3

 My interpretation of workplaces and passageways under section 56.20003(a) is 

consistent with the decision of Judge James Gilbert on this same issue. Taft Production Co., 23 

FMSHRC 522, 526 (Feb. 2014). 

36 FMSHRC Page 1574
standards. (Ex. G-5). The citation states that there was a pile of material upon the section 4 pad 

that covered a 5 foot by 5 foot area. The depth of the pile varied between 4 inches and 3 feet and 

there were footprints in the pile. The citation states that miners entered the area to grease the 

bearings of the chain conveyor. Inspector Wiedeman determined that an injury was reasonably 

likely to occur and that such an injury could reasonably be expected to result in lost workdays or 

restricted duty. Further, he determined that the violation was significant and substantial 

(“S&S”), the operator’s negligence was moderate, and that one person would be affected. The 

Secretary proposed a penalty of $176.00 for this citation. 

For the reasons set forth below, I modify Citation No. 8697955 to be non-S&S. 

Discussion and Analysis

 I find that the condition cited in Citation No. 8697955 is a violation of section 

56.20003(a) for the same reasons I found that Citation No. 8697954, above, violated the safety 

standard. Respondent does not contest that it violated section 56.20003(a) with respect to this 

citation, but argues that the cited conditions were not S&S. 

 I find that the Secretary did not fulfill his burden to prove that Citation No. 8697955 was 

reasonably likely to contribute to an injury and Citation No. 8697955 is therefore not S&S.4

 The 

Secretary argues that a serious injury was reasonably likely to occur because miners were 

exposed to the conditions, evidenced by footprints in the accumulations. (Tr. 39; Ex. G-6). 

Miners walked through the cited area on a daily basis to grease conveyor bearings. (Tr. 40, 91). 

I find, however, that the cited condition was unlikely to cause an injury. Kingston testified that 

the accumulated material was dust and the photographs corroborate his testimony. (Tr. 91; Ex. 

G-6). Walking through a small amount of dust is unlikely to trip a miner. The area where the 

largest and deepest accumulations occurred was directly under the conveyor, which was too low 

to the ground to walk under. (Ex. R-4). The Secretary presented no evidence asserting that the 

dust was slippery. As a consequence, the dust would be unlikely to obstruct the path of and trip 

a pedestrian miner. Although the Secretary showed that the condition existed and miners 

accessed the area, he did not show that the cited condition was likely to cause injury. Access to a 

condition does not establish that the condition is likely to injure a miner. The Secretary did not 

establish that it was reasonably likely that the hazard contributed to by the violation would result 

in an injury. The citation is therefore not S&S. 

 4

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). In order to establish the S&S nature of a violation, 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 will 

be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord 

Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 

99, 103 (5th Cir. 1988) (approving Mathies criteria). The Commission has held that “[t]he test 

under the third element is whether there is a reasonable likelihood that the hazard contributed to 

by the violation...will cause injury.” Musser Eng’g, Inc. and PBS Coals, Inc., 32 FMSHRC 

1257, 1281 (Oct. 2010). 

36 FMSHRC Page 1575
I find that the violation was the result of Respondent’s moderate negligence. I credit 

Kingston’s testimony that Respondent noticed the condition a few hours before the inspection 

and planned to remove it; a miner should not have walked through the cited area before it was 

cleaned. Citation No. 8697954 was the result of Respondent’s moderate negligence. I hereby 

MODIFY Citation No. 8697955 to be non-S&S; a penalty of $500.00 is appropriate for this 

violation. 

C. Citation No. 8697956

On April 23, 2013, MSHA Inspector Eric Wiedeman issued Citation No. 8697956 under 

section 104(a) of the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s 

safety standards. (Ex. G-7). The citation states that the shafts of the squaring plate shuttle on the 

104 pelletizer were not guarded. The guard was removed and was near the cited shafts. (Tr. 51-

52; Ex. G-8). The shafts move approximately 3 inches and were located 2-3 inches above the 

deck. The citation states that miners enter the area to inspect and clean. Inspector Wiedeman 

determined that an injury was unlikely to occur, but that such an injury could reasonably be 

expected to result in lost workdays or restricted duty. He determined that the operator’s 

negligence was moderate and that one person would be affected. Section 56.14107(a) of the 

Secretary’s safety standards requires “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. § 

56.14107(a). The Secretary proposed a penalty of $100.00 for this citation. 

For the reasons set forth below, I affirm Citation No. 8697956. 

Discussion and Analysis

 I find that the conditions cited in Citation No. 8697956 violated section 56.14107(a). 

The Commission has held that a violation of the guarding standard requires a “reasonable 

possibility of contact and injury” that includes “contact stemming from inadvertent stumbling or 

falling, momentary inattention, or ordinary human carelessness.” Thompson Brothers Coal Co., 

Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). To determine whether a reasonable possibility 

exists, the Commission stated that all “relevant exposure and injury variables, e.g., accessibility 

of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of 

human conduct” must be considered. Id. The parties agree that the cited squaring plate shaft 

was unguarded. Although the equipment was not under repair and operated the previous night, 

Respondent’s policy requires miners to lock out the cited equipment before entering the area. 

(Tr. 95). Policy, however, cannot account for “the vagaries of human conduct” that may lead a 

miner to enter the area without locking out the equipment. It would be reasonably possible for a 

miner to contact the cylinders in the unguarded area, doing so with a foot since the area was 2-3 

inches above the deck. (Tr. 52). The focus of the analysis in this guarding standard is the 

reasonable possibility of contact, not whether the machine was operating and the parts were 

36 FMSHRC Page 1576
physically moving at the time of the inspection.5

 The cited condition presented a reasonable 

possibility of injuring a miner and Respondent therefore violated section 56.14107(a). 

Although the violation was not S&S the gravity was serious. Respondent knew or should 

have known of the condition cited in Citation No. 8697956. The condition was obvious and the 

result of Respondent’s moderate negligence. I AFFIRM Citation No. 8697956 and find that 

penalty of $600.00 is appropriate for this violation. 

D. Citation No. 8697960

On May 1, 2013, Inspector Wiedeman issued Citation No. 8697960 under section 104(a) 

of the Mine Act, alleging a violation of section 56.14130(g) of the Secretary’s safety standards. 

(Ex. G-9). A miner noticed upon inspection that the seat belt of Respondent’s #3 Mack water 

truck was broken but he operated the vehicle without using the seat belt. Id. Inspector 

Wiedeman determined that an injury was reasonably likely to occur and that such an injury could 

reasonably be expected to be fatal. Further, he determined that the violation was S&S, the 

operator’s negligence was low, and that one person would be affected. Section 56.14130(g) 

requires that “[s]eat belts shall be worn by the equipment operator except that when operating 

graders from a standing position, the grader operator shall wear safety lines and a harness in 

place of a seat belt.” 30 C.F.R. § 56.14130(g). The Secretary proposed a penalty of $263.00 for 

this citation. 

For the reasons set forth below, I vacate Citation No. 8697960. 

Discussion and Analysis

I find that Respondent did not violate section 56.14130(g) because section 56.14130(g) 

does not apply to the cited piece of equipment. The Secretary does not require all self-propelled 

vehicles to be equipped with Rollover Protection Systems (ROPS) and seatbelts. Only the 

vehicles listed in section 56.14130(a) must have ROPS and seatbelts. All vehicles that require 

seatbelts also require ROPS. The only exception is haulage trucks, which are required to have 

5

 I reject Respondent’s argument that Citation No. 8697956 should be vacated because 

the unguarded moving parts were not actively moving at the time of inspection. Respondent 

mischaracterized a decision to support its argument, citing Brubaker Mann to argue that if the 

inspector did not see the equipment in use, it did not violate section 56.14107(a). 8 FMSHRC 

1487, 1493 (Sept. 1986) (ALJ). Brubaker Mann, however, does not reference whether a piece of 

equipment was actively moving, but whether that equipment was in service. The Commission 

has addressed guarding standards. See Thompson Brothers Coal, 6 FMSHRC at 2097. I find 

that under Section 56.14107(a), moving parts are machine parts that move as part of their 

functions; the standard is not limited to parts that actively move during an inspection. 

Respondent, furthermore, references MSHA’s program policy manual (“PPM”) to argue 

that the standard only applies when no guard exists at conveyor pulleys. (R. Br. at 8-9). 

Respondent misconstrues the PPM and its argument ignores the plain language of section 

56.14107(a) that requires any moving parts, including shafts, to be guarded. I also reject 

Respondent’s arguments that rely upon other standards as they do not apply to the current case. 

36 FMSHRC Page 1577
seatbelts but not ROPS under a different safety standard at section 56.14131(a). When the 

Secretary promulgated section 56.14131 he chose to only require seatbelts upon haulage trucks 

rather than on all vehicles used at surface mines that are not protected by ROPS. “Safety 

Standards for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and 

Nonmetal Mines,” 53 Fed. Reg. 32496. 32512 (August 25, 1988). 

Subsection (g) of section 56.14130 is only applicable if subsection (a)6 requires the 

installation of seatbelts upon the cited equipment. Ford Construction Co., 14 FMSHRC 1975, 

1977 (Dec. 1992). The Commission did not require that a piece of equipment be explicitly listed 

in subsection (a).7 Instead, the Commission found that the pertinent consideration of whether 

section 56.14130 applies is the characteristics of the equipment, including “the size of the cited 

equipment, its function and its ability to articulate[.]” Id at 1978. 

Based upon Kingston’s description of the equipment and the photograph of the 

equipment submitted by the Secretary, I find that section 56.14130(a) does not apply to the cited 

piece of equipment. A water truck is not a “wheel tractor,” as that term is used in section 

56.14130(a)(3), because it does not fit within the definition of a tractor. A “tractor” is a “selfpropelled vehicle . . . intended for moving itself and other vehicles.” Am. Geological Institute, 

Dictionary of Mining, Mineral, and Related Terms 582 (2d ed. 1997) (emphasis added). The 

Secretary did not present any evidence that the cab of the water truck was in a tractor that pulled 

a wheeled water tank. Likewise, the Secretary also did not establish that the water truck was the 

“tractor portion of semi-mounted . . . water wagon[,]” as that term is used in section 

56.14130(a)(4). A water wagon is generally larger than a water truck and cannot operate upon 

public highways. (Tr. 99). There is also no evidence that any portion of the water truck was 

“semi-mounted,” that the truck had the ability to articulate, or that it included a tractor. 

6

 Section 56.14130(a) states: 

 Roll-over protective structures (ROPS) and seat belts shall be installed on— 

(1) Crawler tractors and crawler loaders; 

(2) Graders; 

(3) Wheel loaders and wheel tractors; 

(4) The tractor portion of semi-mounted scrapers, dumpers, water 

wagons, bottom-dump wagons, rear-dump wagons, and towed fifth 

wheel attachments; 

(5) Skid-steer loaders; and 

(6) Agricultural tractors. 

30 C.F.R. § 56.14130(a). 

7

 Respondent argues that section 56.14130(g) does not apply to water trucks because 

water trucks are not specifically listed in section 56.14130(a). The Commission expressly 

rejected this argument. Ford Construction Co., 14 FMSHRC at 1977. 

36 FMSHRC Page 1578
It is clear that section 56.14130(a) primarily addresses large, industrial, tractors that 

articulate and not trucks like the water truck cited here. I reject the Secretary’s argument that the 

water truck fits within section 56.14130(a) because it had a “semi-tractor style cab consistent 

with the types of equipment listed” in that subsection. (Sec’y Br. at 18 n. 8) (emphasis added). 

Subsection (a) was not broadly written to include all vehicles with large truck cabs. It is 

significant that the Secretary did not present evidence that the water truck was equipped with 

ROPS or that it was cited by the inspector for not being equipped with ROPS. If a seatbelt was 

required in the water truck, then ROPS was required as well. I find that the cited water truck 

does not fit any of the equipment listed in section 56.14130(a), which is a prerequisite for the 

application of section 56.14130(g). 

The Secretary also argues that section 56.14100(b) applies to the cited condition. That 

safety standard provides that “[d]efects on any equipment, machinery, and tools that affect safety 

shall be corrected in a timely manner to prevent the creation of a hazard to persons.” The 

Secretary did not allege a violation of that safety standard and Respondent was not given the 

opportunity to defend against such an allegation. Consequently, I have not considered this 

argument. Failure to wear a seatbelt creates a hazard. The Secretary’s safety standard and its 

regulatory history, however, compel me to VACATE Citation No. 8697960 because section 

56.14130(g) does not apply to the cited equipment.8

 

II. 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 considered the Assessed Violation History Report, which was 

submitted by the Secretary. (Ex. G-13). Respondent was issued 12 citations in the 15 months 

prior to April 23, 2013. Most were designed as non-S&S when issued. Respondent was a 

medium-sized mine operator which employed about 73 people in 2013. The violations were 

abated in good faith. The penalties assessed in this decision will not have an adverse effect upon 

the ability of Taft Production Company to continue in business. The gravity and negligence 

findings are set forth above. I find that the penalties proposed by the Secretary were too low 

taking into consideration the size of the operator, the gravity of the violations, and Respondent’s 

negligence. I increased the penalties based primarily on the size of Respondent. 

 

 8

 The Secretary should consider amending its safety standards for metal and nonmetal 

mines to require the use of seatbelts in all vehicles used upon the surface at such mines. 

36 FMSHRC Page 1579
III. ORDER 

 For the reasons set forth above, I MODIFY Citation Nos. 8697954 and 8697955, I 

AFFIRM Citation No. 8697956, and I VACATE Citation No. 8697960. Taft Production 

Company is ORDERED TO PAY the Secretary of Labor the sum of $1,500.00 within 30 days 

of the date of this decision.9 

 

 /s/ Richard W. Manning 

Richard W. Manning 

 Administrative Law Judge 

Distribution: 

 

Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202 (Certified Mail) 

Larry Evans, Oil-Dri Corporation of America, P.O. Box 380, Ochlocknee, GA 31773-0390 

(Certified Mail) 

 9

 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. 

36 FMSHRC Page 1580
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

 June 5, 2014 

DECISION

Appearances: Willow Eden Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 

Nashville, TN, for Petitioner; 

David J. Hardy, Esq. & Christopher D. Pence, Esq., Hardy Pence, LLC, 

Charleston, WV, for Respondent. 

Before: Judge Andrews 

REVELATION ENERGY, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent, 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

REVELATION ENERGY, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDINGS 

Docket No. KENT 2011-357-R 

Order No. 8257014; 12/21/2010 

Mine: S-4 Netley Branch 

Mine ID: 15-17799 

Docket No. KENT 2011-211-R 

Order No. 8257006; 10/22/2010 

Mine: S-1 Hunt’s Branch 

Mine ID: 15-18280 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2011-1106 

A.C. No. 15-18280-254952 

Mine: S-1 Hunt’s Branch 

Docket No. KENT 2011-1054 

A.C. No. 15-17799-251789 

Mine: S-4 Netley Branch 

36 FMSHRC Page 1581
This proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (the “Mine Act” or “Act”). Hearings were held in Prestonsburg, 

Kentucky on September 25th and 26th, 2012, at which the parties presented testimony and 

documentary evidence. This matter concerns Citation No. 8257006, Citation No. 8257014 and 

Citation No. 8257015 issued on December 21, 2010, December 22, 2010 and December 29, 

2010, respectively. Citation No. 8257006 and Citation No. 8257015 were issued under Section 

104(d)(1), and Citation No. 8257014 was issued under Section 103(k) of the Act. After the 

hearing, Post Hearing Briefs and Reply Briefs were submitted. 

Common Facts and Law

The parties agreed to the following stipulations: 

1. During all times relevant to this matter, Revelation was the owner of the S-1 Hunts 

Branch Mine, Mine ID No. 15-18280. 

2. The S-1 Hunts Branch Mine, Mine ID No. 15-18280, is a “mine” as that term is defined 

in Section 3(h) of the Federal Mine Safety and Health Act (“Mine Act”), 30 U.S.C. § 

802(h). 

3. At all material times involved in this case, the products of the subject mine entered 

commerce, or the operations or products thereof affected commerce, within the meaning 

and scope of Section 4 of the Mine Act, 30 U.S.C. § 803. 

4. This Proceeding is subject to the jurisdiction of the Mine Safety and Health Review 

Commission and its designated Administrative Law Judges pursuant to Sections 105 and 

113 of the Mine Act. 

5. MSHA Inspector Todd Belcher, whose signature appears in Block Number 22 of Citation 

Numbers 8257006, 8257014 and 8257015, was citing in the official capacity and as an 

authorized representative of the Secretary of Labor when Citation Numbers 8257006, 

8257014 and 8257015 were issued. 

6. True copies of Citation Numbers 8257006, 8257014 and 8257015 were served on 

Revelation as required by the Mine Act. 

7. The total proposed penalties assessed for Citation Numbers 8257006, 8257014 and 

8257015 will not affect Revelation’s ability to stay in business. 

8. The alleged violation was abated in good faith. 

JX-1.1

 1 Hereinafter, the joint exhibits will be referred to as “JX” followed by the number. 

Similarly, the Secretary’s exhibits will be referred to as “SX” and Respondent’s exhibits will be 

referred to as “RX.” 

36 FMSHRC Page 1582
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact are based on the record as a whole and my careful observation of 

the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken 

into consideration the interests of the witnesses, or lack thereof, and consistencies, or 

inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In 

evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to 

provide detail as to each witness’s testimony is not to be deemed a failure on my part to have 

fully considered it. The fact that some evidence is not discussed does not indicate that it was 

not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge 

is not required to discuss all evidence and failure to cite specific evidence does not mean it was 

not considered). 

KENT 2011-1054 & KENT 2011-357-R 

Todd Belcher2 issued Citation No. 8257015 on December 29. 2010 after he investigated 

a report that a blast at the S-4 Netley Branch Mine on December 21, 2010 caused a flyrock 

event.3 Tr. I, 41, 139, 141-142; SX-13. 

The S-4 Netley Branch Mine was a multiple seam mining operation, which was 

approximately 300-500 acres in size. Tr. I, 39. The mine had two spreads of equipment that 

removed spoil from the coal pits. Tr. I, 40. Belcher explained the process by which an operator 

extracts coal from this sort of surface mine: first they develop a work area by removing trees 

 2

 At the time of hearing, Todd Belcher had been working for five years as a surface and 

ground control specialist for MSHA at the District 6 office in Pikeville. Tr. I, 26-27. Prior to 

working for MSHA, Belcher worked in the engineering department at Central Appalachian 

Mining (CAM) tracking the permitting and application process for one year from 2006-2007. Tr. 

I, 32-33. Prior to that, Belcher worked for 21 years as an inspector and then supervisor for the 

Commonwealth of Kentucky at the Department for Surface Mine Reclamation Enforcement. Tr. 

I, 33. He has an Associate’s degree in Mining Technology from Pikeville College. Tr. I, 38. 

As a ground control specialist with MSHA, Belcher’s primary responsibilities are to 

ensure that adequate plans for ground control plans are submitted and acknowledged throughout 

the District, and to perform accident and regular investigations as needed. Tr. I, 27. Belcher had 

attended a two-week training on accident investigation at Beckley, and had performed 

approximately 10-12 accident investigations since coming to MSHA. Tr. I, 27-28. Most of the 

accident investigations took place at surface mines. Tr. I, 28. Approximately half of these 

investigations were flyrock accidents, and the remainder were primarily equipment accidents. Tr. 

I, 28. 

3

 Austin Powder was also served with citations and violations for the fly-rock incident. Tr. 

I, 273. 

36 FMSHRC Page 1583
and creating a drill bench to allow the drilling process to proceed. Tr. I, 29-30. Then the holes 

are drilled and loaded, and the material is blasted or shot so it can be fragmented and removed 

with loading equipment.4 Tr. I, 30. Once the overburden or spoil is removed, then the coal can 

be picked up.5 Tr. I, 30. 

Revelation began operating the S-4 Mine in April 2010. Tr. I, 193. Prior to that, 

Appalachian Fuel operated the mine. Tr. I, 193. The blasting at the S-4 Mine was contracted 

out to Austin Powder in December 2010. Tr. I, 192-193. 

December 21, 2010 was a cold and snowy day, with visible snow cover on the ground. 

Tr. I, 197. Day shift foreman Robert Stanley followed his general routine of arriving at the 

mine at approximately 4:45 a.m., and proceeded to do a pre-shift examination.6 Tr. I, 197. 

According to this routine, he would check the road conditions and the highwall, with the whole 

process usually taking him an hour. Tr. I, 197. Stanley performed a full examination before 

letting any of the day shift men enter the work area at 6:00 am. Tr. I, 198-199. 

Stanley testified that nothing stood out on the December 21 inspection. He testified that 

“the walls and stuff were intact, everything was safe, the roads were graded from the night 

before, the area was safe to go into and proceed on.” Tr. I, 199. Stanley then took an hourly 

employee and Wendell Schwartz, a loader man, into the area. Tr. I, 199-200. Schwartz was 

working with three rock truck drivers that rotated through the pit area. Tr. I, 200. These 

workers would have removed the overburden or the shot from the day before that was still in 

place. Tr. I, 201. 

Stanley looked at all the holes and saw that they were not loaded. Tr. I, 204-205. The 

holes were usually loaded at daylight, around 7:30 or 8:00 am. Tr. I, 207. Stanley left the area 

 4

 A “shot” is synonymous with the term “blast.” The detonation that occurs after a hole is 

drilled and loaded with explosives is a “shot.” Tr. I, 40. Each blast or shot is assigned a number. 

Tr. I, 61. Shots are numbered sequentially, and are reset at the beginning of each calendar year. 

Tr. I, 229. 

5 The overburden or spoil is the rock that overlies the coal. It can consist of sandstone, 

shale, and similar rock. Tr. I, 30. 

6 Robert Stanley was the day shift foreman at the S-4 Mine on 12/21/2010. Tr. I, 191. 

This shift lasted roughly from 5 am-5 pm. Tr. I, 191. Stanley began his mining career in 1994, 

and has worked in surface mining since. Tr. I, 191-192. He was a Kentucky and West Virginia 

certified coal miner and foreman, as well as a Kentucky certified EMT and an MSHA limited 

instructor. Tr. I, 192. Stanley had worked at the S-4 Mine since April 2010. Tr. I, 193. He 

reported to Roland Davis, the general manager of the mine. At that time, Davis was also 

managing the Hunts Branch S-1 mine. Tr. I, 194. 

36 FMSHRC Page 1584
around 6:20 or 6:30 a.m.7

 Tr. I, 208. Wallen called Stanley prior to the shot and stated that he 

was ready to detonate and that Stanley’s men needed to be removed from the area. Tr. I, 212. 

Stanley was at the “prell bin” where the powder was located when the shot was detonated. Tr. I, 

212. At this position he was about a quarter of a mile away and did not have a clear view of the 

shot because it was blocked from the spoil bank. Tr. I, 213. 

Wallen was in charge of Shot 255, and had two additional men working with him on it.8

Tr. I, 228, 235-236. Prior to detonating the shot, Stanley told Wallen what area they were going 

to shoot. Tr. I, 236. Wallen and his men went to the magazines, got the product, placed 

everything in place, and had a pre-shift meeting. Tr. I, 236. They then proceeded to go out to 

the area and look around to make sure there was nobody working. Tr. I, 236. They then placed 

a blasting sign to make anyone around aware of the upcoming blasting. Tr. I, 237. Wallen used 

his GPS to determine how far they were from houses. Tr. I, 237. He then checked the area on 

the face and the burden of the holes to determine if anything else needed to be done before the 

blast. Tr. I, 237. 

The shot was detonated at 9:01 am. Tr. I, 250. Wallen did not see anything that caused 

him concern, and he did not see any flyrock depart from the shot. Tr. I, 251. Wallen was aware 

of the location of the homes, and he testified that he designed the shot away from the homes. Tr. 

I, 243-244. Wallen testified that the shot appeared to detonate the way he designed it to 

detonate. Tr. I, 251. 

Danny Mullins pulled the trigger on the shot, while Wallen videotaped. Tr. I, 274. At 

the time of the shot, Wallen was trying to videotape it, but he fell because it was slick where he 

was standing. Tr. I, 251. As a result, the camera fell from his hand and turned off.9 Tr. I, 251, 

258-259. Wallen testified that when he fell, the shot was 95-100% completed. Tr. I, 262. 

Reviewing the video, Wallen was not able to see the flyrock. Tr. I, 252-256. Wallen testified 

 7 He communicated with the certified blaster, Shawn Wallen, at Austin Powder from time 

to time. Tr. I, 194-195. Stanley would usually tell Wallen in the early mornings what areas 

needed to be blasted. Tr. I, 195. Revelation relied on Austin Powder, and did not have someone 

responsible for laying out Wallen’s shot or supervising Wallen. Tr. I, 195. 

8 On December 21, 2010, Wallen was employed by Austin Powder Company as a certified 

blaster at the Revelation S-4 Mine. Tr. I, 226. Wallen had been working at that mine since April 

2010, and his shift was from 10 pm until approximately 6 am. Tr. I, 227-229. His supervisor was 

Dana Hamilton, and his contact at the mine was Superintendent Robbie Stanley. Tr. I, 227. Part 

of Wallen’s job required him to communicate first thing in the morning with Stanley about the 

drill bench, road conditions, the areas where shooting was going to occur, as well as the plan for 

the day. Tr. I, 227. 

9 The video submitted into evidence appears to be shut off before any motion that would 

indicate that the person operating the camera was falling. SX-18. 

36 FMSHRC Page 1585
that the vehicle visible in the video was a D-9 bulldozer, and that it was empty. Tr. I, 259-260. 

It would have been dangerous for an individual to be inside the vehicle during a blast, but 

Wallen stated that it was left there because he “felt it was safe for it to sit there.” 10 Tr. I, 260. 

After the shot was detonated, Stanley went to do another on-shift examination. Tr. I, 

213. Stanley radioed Wallen to ask if everything was clear and it was alright to go into the area, 

and Wallen said things were all clear. Tr. I, 214. 

Between 9:45 and 10:00 am, Stanley received a phone call from the engineering 

department asking if there had been a flyrock. Tr. I, 214-215. Stanley responded that he did not 

know of any flyrocks, and the engineering department told him that residents below called to 

complain of flyrocks in their yards. Tr. I, 215. Stanley called Wallen immediately and they 

contacted Dana Hamilton, who was a certified blaster with Austin Powder.11 Tr. I, 215. While 

Wallen and Hamilton made arrangements to go down to the area where the flyrocks landed, 

Stanley contacted MSHA and officials at the Commonwealth of Kentucky to report the flyrock. 

Tr. I, 215. 

After Belcher received the report at around 9 a.m., he went to the location of the alleged 

flyrock event in order to see if any homes had been damaged or any injury had occurred. Tr. I, 

41-42. First, Belcher issued the 103(k) Order, which ceased all blasting on the mine property. 

Tr. I, 42. The next day, MSHA conducted interviews at the mine office, which led to the 

conclusion that flyrock events had occurred that should have been included in the ground 

control plan. Tr. I, 42-43. 

Belcher testified that the 15 year history of the mine showed that the area was subject to 

flyrock events. Tr. I, 43. Flyrock is not in itself a violation, however failing to follow a ground 

control plan is a violation of 30 C.F.R. 77.1000. Tr. I, 59-60. Section 77.1000 requires each 

operator to establish and follow a ground control plan in order to provide safe working 

conditions at the mine site. Tr. I, 60. The ground control plan for the S-4 Netley Branch Mine 

that was in effect at the time of the citation was dated April 26, 2010. Tr. I, 60; SX-16. 

A ground control plan must address the type of mining being conducted, whether single 

seam mining, multiple seam mining, or area mining. Tr. I, 28. The ground control plan must 

also address how the configuration of the highwall will be left such that it provides safe 

working conditions for the miners. Tr. I, 28. If the mine is engaging in multiple-seam mining, 

 10 In the video it appears that the vehicle has its headlights on and is moving, indicating 

that someone was operating it. SX-18. It would have been illegal to have someone sitting in the 

vehicle during the blast. Tr. I, 259-260. 

11 Dana Hamilton had worked as a certified blaster with Austin Powder S-1 Mine since 

October 13, 2009. Tr. II, 135-136, 139. Hamilton began blasting work in 1982 and became a 

certified blaster in 1984. Tr. II, 136. As part of the certification process, Hamilton worked two 

years on a powder crew and took two Kentucky examinations. Tr. II, 136-137. 

36 FMSHRC Page 1586
then safety benches must be strategically placed to ensure safe highwall conditions.12 Tr. I, 28. 

Additionally, the plan must include safety precautions for various activities, such as blasting. 

Tr. I, 28-29. If there had been a history of flyrock events, the plan must include greater blasting 

details. Tr. I, 29. 

In this case, due to the dangers associated with blasting, rocks were projected between 

1,100-1,200 feet through the air and landed near people’s homes. Tr. I, 46. One of the rocks 

fragmented and struck the window of a nearby home. Tr. I, 46. When there is a flyrock event, 

there is an automatic suspension of blasting until an analysis and investigation can be 

performed. Tr. I, 47. 

A drill log is used to inform blasters about any abnormalities, such as cracked holes, so 

that the blaster is informed prior to loading the holes. Tr. I, 55. Belcher noticed in the drill log 

that there were four holes marked with the letter “V,” indicating that these holes were voided.13

Tr. I, 56. During the course of the investigation, Belcher found that at least three of these four 

holes were not loaded because the material was loaded out. Tr. I, 56, 144. According to the 

report, these holes were loaded with backfill material, however Belcher believed that these 

holes were removed prior to the blast. Tr. I, 148. Belcher did not notice any holes marked with 

the letter “C,” which stands for crack. Tr. I, 56-57. 

One home that was affected by the flyrock event at issue in this case was previously 

affected by a flyrock event five years earlier. Tr. I, 43. Due to this history, and the proximity of 

the homes, Belcher believed that there should have been a “heightened awareness of the 

sensitivity of the area.” Tr. I, 43. The Netley Branch Mine had a blast remediation plan prior to 

the flyrock event cited here. Such plans are put in place once a flyrock event occurs. Tr. I, 62-

64. In the plan, it identifies what went wrong, what led to the occurrence of the flyrock event, 

and what measures will be put in place to prevent a similar occurrence. Tr. I, 62. 

Belcher had been to the S-4 Netley Branch Mine 20-30 times over 15 years, though he 

was not at the mine on the morning prior to the shot. Tr. I, 47. As part of his investigation, 

Belcher conducted interviews on December 22, 2010 with homeowners who lived near the mine 

site. Tr. I, 47-48, 57-58. Belcher also took contemporaneous notes on the violations. Tr. I, 57-

58. Belcher examined the distances between where the rocks landed and the homes nearby. Tr. 

I, 48. He found that there were four to five different rocks ranging in sizes from four-by-four 

inches to 12 by 12 inches. Tr. I, 48. These rocks were scattered on nearby property and Belcher 

 12 The “highwall” is a vertical rock wall that remains after the vertical holes are drilled and 

blasted. Tr. I, 31. To “pre-line” or “pre-split” a highwall means to drill a separate line of holes 

separate from the production holes in as straight a line as possible to crack the wall in a straight 

line. Tr. I, 32. 

13 Stanley testified that the holes with a “V” on them were unloaded holes. Tr. I, 210. 

Wallen testified that the four holes marked with a “V” were voided, meaning that there were no 

explosives loaded. Tr. I, 239. 

36 FMSHRC Page 1587
saw the marks on the sides of homes from the rocks. Tr. I, 48-49. Furthermore, there was snow 

on the ground, so one could see the paths of the rocks. Tr. I, 49. Belcher stated, there were five 

people in one home and three people in another and said, “fortunately no one was injured or 

killed, but there was people home at the time.” Tr. I, 49. 

Belcher also interviewed individuals who were present at the mine during the flyrock 

event, including several state officials and several officials with the Office of Surface Mining. 

Tr. I, 49-50. 

Shawn Wallen was the certified blaster in charge of Blast 255 and filled out the report.14

Tr. I, 139, 141-142. Belcher interviewed Wallen on December 22, 2010. Tr. I, 140-141. 

Belcher interviewed Austin Powder foreman Robert Stanley on December 21 and 22, 2010. Tr. 

I, 149. Belcher’s investigation did not reveal that any agent of the company was present at the 

blast site or in the pit beside the blast site between 6:00 am and 9:00 am on the morning of the 

flyrock event. Tr. I, 150. 

Belcher also reviewed the ground control plan, the drill log, and the blast report.15 Tr. I, 

50-51. The blast report contains a formula that includes the weight of the explosives and 

distance to the nearest dwelling in order to determine a delay. Tr. I, 51. Belcher received the 

blasting report in this case from either Revelation or Austin Powder, and the delay used was 

eight milliseconds. Tr. I, 51, 53. 

Photographs were admitted into evidence that showed a rock that broke through part of a 

window of the house closest to the blast site. Tr. I, 108-109; SX-15. This house was 

approximately 1,000 feet from the blast. Tr. I, 109. The photos also showed splattering on the 

ground where rocks had landed. Tr. I, 111. The owner of the house told Belcher that the 

window had been broken by the flyrock in the photo. Tr. I, 110-111. Belcher interviewed this 

homeowner, and the homeowner stated that the rock came from the mine on the morning of the 

blast. Tr. I, 113. Belcher and the homeowner walked around the entire yard, and the owner 

pointed out the rocks that landed in his yard. Tr. I, 111-112. 

 14 Belcher was not sure if Wallen completed the shot report before or after the flyrock 

event. Tr. I, 155-156. Shawn David Wallen had been a certified blaster for four years at the time 

of hearing, which means that he had classroom training, worked two years on a surface mine 

with a powder crew and blaster, and passed two examinations. Tr. I, 224-225. Wallen had 

worked as a certified blaster since receiving his certification. Tr. I, 226. 

15 Belcher testified that he has reviewed thousands of blast reports during his years 

mining. Tr. I, 51. A blast report has several components, including the company name, the 

amount of holes that are drilled, the depth of the holes, the amount of explosives loaded, the 

amount of stemming, a date and time, and a house number and direction. Tr. I, 50-51. Blast 

reports are used to document the amount of explosives used to move certain amounts of rock. Tr. 

I, 51-52. 

36 FMSHRC Page 1588
According to the photographs, flyrocks landed on a county road, and on other property 

further from the blast site. Tr. I, 112-113; SX-15. The rock was large enough to kill a person if 

it struck him or her in the head. Tr. I, 113-114. Other photos similarly showed rocks that had 

splattered on the side of homes, on trees, and on rooftops. Tr. I, 113-116. 

On December 21, 2010, the public highway and access roads at the mine were 

accessible, and people were using them. Tr. I, 116. Furthermore, people were living in the two 

homes affected by the flyrock event. Tr. I, 116-117. 

After conducting an investigation as a result of the December 21, 2010 flyrock incident, 

Belcher discovered that three elements of the plan were violated, which he grouped into one 

citation. Tr. I, 64-65. The first violation that Belcher discovered was that “sufficient burden 

was not maintained on the side of the shot toward the dwelling.” Tr. I, 66; SX-13. The burden 

was the amount of spoil that was either left in place from the previous shot or solid material that 

had not yet been shot. Tr. I, 66-67. There was a calculation based on the diameter of the hole to 

determine how much burden is necessary to help prevent flyrock from traveling as far. Tr. I, 67-

68. Here, the burden and spacing in the ground control plan ranged from 14-17 feet, with a 14-

foot minimum. Tr. I, 68. The plan states that “any variance from this minimum requires 

identification.” Tr. I, 68-69; SX-16. No variance was ever requested. Tr. I, 69. 

Too much or too little burden can cause problems with flyrocks. Tr. I, 69-70. Belcher 

testified that he believed that the shot was being loaded too quickly, leading to the flyrock 

event. Tr. I, 71. There was not sufficient burden maintained on the side toward the homes, 

which was a violation of the ground control plan. Tr. I, 71-72. Specifically, in the section 

labeled, “Shot Design Parameters,” it states, “[b]urden of spacing ranges will be a minimum of 

14 feet on face burden will be maintained.” Tr. I, 72. It also states, “[a]ll blasts will be directed 

away from homes.” Tr. I, 72-73. SX-16. Based on his investigation, Belcher believed that there 

was less than 14 feet of burden maintained on the side facing houses. Tr. I, 73. Failing to leave 

sufficient burden is enough, and often highly likely, to create a flyrock incident. Tr. I, 96, 98. 

Belcher testified that this was the most serious violation listed in the citation. Tr. I, 97. 

The second violation was in regard to the incomplete video of the shot. The ground 

control plan requires a shot to be captured and recorded on video.16 Tr. I, 73; SX-16. The 

purpose of the video requirement is to provide the blaster, blasting coordinator, and company 

management the opportunity to review blasts. Tr. I, 76. In this instance, the video did not 

comply with the requirements because the video was interrupted during the shot when the 

camera fell. Tr. I, 73-74; SX-16. As a result, the video only captured approximately 30-40% of 

the shot. Tr. I, 77. After reviewing the video, Belcher testified that he noticed rocks projecting 

from the holes in the direction of the nearby houses. Tr. I, 77-78. Belcher testified that in his 

 16 The plan states, “A video camera will be used to monitor each shot and record the area 

prior to, during and after the blast.” SX-16, 8. 

36 FMSHRC Page 1589
experience, the failure to review a problematic blast that created a flyrock incident would lead 

to subsequent flyrock incidents. Tr. I, 99-101. Belcher described how the shots occur quickly in 

real time—often within milliseconds of each other—and the ability to review the video at 

slower speeds can help evaluate and analyze shot performance. Tr. I, 101. Some sites use 

tripods to record video of shots, and Belcher testified that such use would be safer. Tr. I, 123-

125. 

The third violation involved the amount of explosives used. Tr. I, 81-82. The danger of 

using too much explosives is that one can over-break the rock and have less control of flyrock. 

Tr. I, 102. The ground control plan contained a scale distance formula that required an eightmillisecond delay. Tr. I, 83. However, Belcher found that the delays overlapped each other, 

with at least two holes designed not to fire within eight milliseconds.17 Tr. I, 83-84, 88; SX-17. 

There was nothing in the ground control plan that would allow Revelation to exceed the normal 

amount of explosives based on their use of a seismograph.18 Tr. I, 90. 

The blast report listed 354.8 as “Max weight of explosives per eight millisecond 

interval,” and 254.9 as the maximum per interval. Tr. I, 91-92; SX-17. Belcher testified that if 

the number on the blast report was 419.5, rather than 254.9 as the amended report stated, this 

confirmed for him that more explosive was used than allowed. Tr. I, 171-173. Wallen testified 

that the maximum weight of explosives per 8 millisecond interval figure of 254.9 figure on the 

shot report was the result of a computer malfunction. Tr. I, 231; SX-17. The mistake was 

discovered the day after the flyrock by Marty Bashir at the Kentucky Office of Mine Safety and 

License Explosive and Blasting. Tr. I, 231-232. Wallen testified that the amended report, which 

stated that the maximum weight of explosives per 8 millisecond interval figure of 419.5 was 

correct.19 Tr. I, 234; RX-A. 

The blaster in charge makes the determination for this number based on one of three 

different formulas, based on the distance of the house from the shot. Tr. I, 92. In this case, the 

house was 1,036 feet away, so the correct formula would be D over 55 squared. Tr. I, 92. The 

scale distance factor was 64.89. Tr. I, 93-94. Belcher arrived at the conclusion that these two 

holes did not meet the eight millisecond delay by reviewing the blast record provided by the 

company. Tr. I, 135-136. 

 17 The two holes that Belcher found that discharged without an 8 millisecond delay were 

number 1752 and 1760. Tr. I, 134. Wallen disagreed with the Inspector’s assessment concerning 

whether two holes had the required 8 millisecond delay. Tr. I, 245-246. 

18 The State of Kentucky has such a provision, but MSHA does not. Tr. I, 90. 

19 In his testimony, Wallen first stated that the correct figure was 254.9. Then, he stated 

that the correct figure was 419. The amended shot report lists 419.5. Tr. I, 232-234; RX-A. 

36 FMSHRC Page 1590
Belcher testified that in his experience, excess explosives alone have not resulted in 

flyrock. Tr. I, 103. Rather, it usually occurs from a combination of factors such as inadequate 

stemming,20 loading cracked holes, insufficient burden, and neglecting to profile the highwall. 

Tr. I, 103. However, Belcher testified that if one exceeds the amount of explosives in the 

window of time allotted, it could lead to an opportunity to produce a flyrock. Tr. I, 104. 

Belcher testified that the insufficient burden was the leading cause of the flyrock event. 

Tr. I, 178-179. The filming was a problem because if the operator is not getting an adequate 

picture of what is happening with the shots, then adjustments and corrections cannot be made. 

Tr. I, 179. Also, two holes going off at one time due to the lack of an eight millisecond delay or 

exceeding the maximum charge weight could lead to flyrock. Tr. I, 179. 

The combination of the three violations listed in the citation created a situation where 

the gravity was highly likely and the injury or illness that could be expected was fatal. Tr. I, 

104-105. Belcher testified that the combination of these three violations made the occurrence of 

a flyrock event more likely than if only one of these violations were present. Tr. I, 105. Even 

flyrock that does not leave the mine property presents a hazard to miners on the property. Tr. I, 

106. Belcher testified that the injury to be expected from such an event would be fatal. Tr. I, 

107-108. 

Belcher testified that Revelation’s negligence stemmed from their directing workers to 

remove the spoil in and around the blast. Tr. I, 117. Through interviews at the mine, Belcher 

discovered that Austin Powder could not keep ahead of Revelation, so their shots were being 

encroached upon.21 Tr. I, 117-119. There was a 50-foot buffer distance that was required. Tr. I, 

117-120. Four of the holes that were drilled were not loaded properly. Tr. I, 118. They were 

voided, which means that the holes had been loaded out. Tr. I, 118, 121. It was Revelation that 

was in charge of loading these holes. Tr. I, 122. Belcher testified that he did not view the 

relationship between Austin Powder and Revelation as a mitigating factor because ultimately 

Revelation had a responsibility to ensure that Austin Powder did the work correctly. Tr. I, 122. 

KENT 2011-1106 & KENT 2011-211-R 

Belcher issued Citation No. 8257006 on October 22, 2010 at the S-1 Hunts Branch 

Mine. Tr. II, 18; SX-1. The citation was issued in relation to a flyrock incident that occurred on 

October 7, 2010. Tr. II, 18-19. The S-1 Hunts Branch Mine is a large surface coal mine. Tr. II, 

14-15. 

 20 Stemming is process of placing material at the top of the hole, so as to prevent rock 

from shooting out of a cylindrical hole, like a bullet from a gun. Tr. I, 102-103. Stemming forces 

the energy of the blast to break the rock, rather than eject it from the hole. Tr. I, 103. 

21 Stanley denied that there were any problems with Revelation encroaching on the burden 

area. Tr. I, 209. 

36 FMSHRC Page 1591
Dewey Reed was the blaster at the S-1 Mine on October 7, 2010, and Hamilton was on 

the property helping Reed.22 Tr. II, 137. Reed was the lead blaster on the shot, Blast No. 651, 

but Hamilton was his boss. Tr. II, 138. 

Roland Davis was the General Manager at the Hunts Branch S-1 Mines on October 7, 

201023. Tr. II, 87. On October 7, 2010, Davis arrived at the mine between 5:00-6:00 am and left 

between 5:00-5:30 pm. Tr. II, 92-93. Prior to leaving on that day, Davis went to the shot area 

periodically. Tr. II, 93. 

Hamilton testified that the shot was shot at 6:51 pm, and a resident called approximately 

10 minutes later to say that a rock came off of the out-slope and was at their residence. Tr. II, 

146. Hamilton did not see the rock go down the hill from where he was standing, which was 

approximately 2,000 feet away. Tr. II, 146. Another Austin Powder employee, Charles Sexton, 

thought he saw the rock, so Hamilton immediately went to make a visual observation of the 

area. Tr. II, 147. He did not see any evidence that the rock had made any contact with either 

catch bench. Tr. II, 147-148. Hamilton sent a driller named Dwayne Endicott over the outslope, 

and he reported that he did not see anything. Tr. II, 148. 

Hamilton received another call from a mine clerk saying that her mother had another 

rock by her residence. Tr. II, 149. Hamilton went to the residence and observed a rock that was 

approximately three to four feet in diameter. Tr. II, 149. He made sure that no one was hurt, 

and at 7:00 pm called the State Mining Office and Roland Davis. Tr. II, 94, 149. 

Hamilton told Davis that a rock had gone over the hill. Tr. II, 94. He further stated that 

no one was hurt, there was no damage to property, and that he had made the proper phone calls 

reporting the incident. Tr. II, 95. Davis went back to the mine, arriving at approximately 8:00-

8:30 pm. Tr. II, 95. Davis drove up the hollow where the rock had come to rest, spoke with 

Hamilton, and then went home. Tr. II, 95. 

Belcher received notification of the flyrock incident when he came into work on the 

morning of October 8, 2010. Tr. II, 19. He proceeded to conduct interviews with individuals 

who worked at the mine site and with residents of nearby homes, visited the mine site at least 

 22 Dewey Reed is also called “Bruce Reed.” Tr. II, 138. 

23 Davis is a certified surface mine foreman in Kentucky, West Virginia, and Virginia. Tr. 

II, 89. He is a certified MSHA limited trainer. Tr. II, 89. Davis began his surface mining career 

in 1978. Tr. II, 89. He is not a certified blaster. Tr. II, 89-90. In his position as General 

Manager, Davis’s duties were to manage the mine costs and mine production, as well as setting 

the mine plans. Tr. II, 87-88. At the time of the cited event, Revelation had been in control of 

the mine for approximately one year. Tr. II, 88. Prior to Revelation, CAM Mining was the 

operator of the mine. Tr. II, 88. Revelation prepares the areas for the blasting company to blast, 

however Davis had no involvement with drilling, loading, or detonating. Tr. II, 90. 

36 FMSHRC Page 1592
twice, and travelled to the area where the flyrock landed. Tr. II, 20-21. Belcher reviewed a 

copy of the ground control plan, the drill log, the video, and the mine’s history. Tr. II, 21-22. 

Belcher took photographs and notes, dating from October 8-29, 2010, in order to document his 

findings. Tr. II, 22. 

After performing his investigation, Belcher found that the mine site was above steep 

terrain, there were heavily populated areas below the mine site, and there were at least three or 

four different flyrock events in the past. Tr. II, 23-24. This was a “highly sensitive” area that 

required a detailed blast remediation plan.24 Tr. II, 24. Such plans are jointly reviewed and 

agreed upon by the Commonwealth of Kentucky, the operator’s blasters, and MSHA. Tr. II, 24. 

 The plan in place at this mine required a catch bench of a specific size. Tr. II, 24. 

A catch bench is utilized to catch spoil, rocks, and debris that may be removed from the 

top as material is extracted to get to the coal bed. Tr. II, 15-16. Catch benches must be 

constructed prior to blasting, and are commonly placed along perimeters, especially in areas 

where there is a possibility that the rocks could travel into public roads or residences. Tr. II, 16. 

 The catch bench requirements must be included in the mine’s ground control plan. Tr. II, 17-

18. The size of the catch bench necessary is generally determined by an assessment of any past

history, rock sizes, and other catch materials. Tr. II, 16-17. A common size for catch benches is 

15 feet wide and 10 feet high. Tr. II, 17. 

Belcher found that there were two catch benches that had been constructed in the area 

between where the shot was detonated and down to the Alma Seam they were mining down to. 

Tr. II, 24, 25. These were less than 10 feet high, with some portions approximately 5 feet high. 

Tr. II, 25. The rock that Belcher saw was approximately four and a half by four and a half by 

six feet, and weighed approximately eight to nine tons. Tr. II, 25, 48. 

The ground control plan was drafted by the company and approved by MSHA on 

October 16, 2009. Tr. II, 26, 33; SX-1, 1. It was in place at the mine on October 7, 2010. Tr. II, 

26; SX-1, 1. The ground control plan contains a blast remediation plan because of prior flyrock 

events. Tr. II, 27-28. Item four of the ground control plan required a 15-foot wide catch bench, 

measured from the top of the berm to the highwall, with a 10-foot high berm, at all major 

seams, which included Williamson, Thacker, Cedar Grove, and Alma.25 Tr. II, 29; SX-3, 11. 

24 The blast remediation plan is also sometimes called the “blasting plan.” Tr. II, 24. 

25 Item four of the Blast Remediation Plan states: 

4) A 15 foot wide catch bench (measured from the top of the berm to the 

high wall) with a 10 foot high berm, will be installed on all major seams 

(e.g. Williamson, Thacker, Cedar Grove, & Alma) to be mined at all 

times when practical, prior to blasting in the area. The catch bench will 

be cleaned prior to the next shot. In the event that a catch bench can’t be 

constructed, then items 18-23 [sic] of the Blast Remediation Plan for 

Areas where a Catch Bench is not constructed will apply. 

36 FMSHRC Page 1593

(continued...)
Belcher testified that this item was violated. Tr. II, 29; SX-3, 11. Belcher testified that this 

requirement was a minimum size requirement, which the operator could exceed. Tr. II, 30. 

Item four of the plan states that if a catch bench cannot be constructed as required, then 

items 18-23 of the blast remediation plan apply.26 Tr. II, 31-32, 38; SX-3, 11. None of these 

SX-3, 11. After the flyrock event, Revelation removed the phrase “when practical” from item 

four. Tr. II, 118. 

26 The plan mistakenly references items 18-23, but it is clear from the document that the 

correct items are 19-24, under the heading, “Blast Remediation Plan for Areas where a Catch 

Bench is not Constructed.” Tr. II, 32; SX-3, 12. Items 19-24 state: 

19) In protection zone areas (see page 17), for the first breakdown shot which has a

maximum depth of 25’, the first row of holes will be pre-split or break line drilled and 

located a minimum of 20’ from the crop. If company elects to, the pre-split can be drilled 

to the coal. 

20) For the first breakdown shot of the protection zone, a complete free face

(excess burden removed) will be maintained. The face and the direction of the blast are to 

be oriented away from the control structure and towards the open pit. 

21) The outside 2 rows of holes in the protection zone will be decked as shown on

the attached diagrams. It should be noted that the diagrams are typical and that the actual 

shot will be based on field conditions. A minimum of 10’ true burden will be maintained 

from the pre-split to the first row of production holes. 

22) The protection zone is not considered a “No Spoil Area.” A “No Spoil Area” is

any location of a shot where material, rocks, and spoil cannot be cast, pushed, or ejected 

onto the down slope beyond the designated safety bench. 

23) All shots within the protection zone will be designed to minimize the back

pressure toward the no spoil side. 

24) The out slope in the protection zone will be videotaped prior to and directly

after the shot to monitor the change in cracks or hill seams. After 2-3 shots, if the out 

slope visibly does not show that it is being stressed by the shots and also if decking is 

causing secondary blasting due to improper breakage (e.g. unmanageable rock sizes) or 

causing unsafe ragged walls, then the shot deck will be evaluated and changed with the 

approval of DMRE. 

SX-3, 12. 

36 FMSHRC Page 1594

25(...continued)
items allow Revelation to build two catch benches of smaller height and width in lieu of the one 

required in item four. Tr. II, 32. Revelation did not comply with the alternate provisions set 

forth in items 19-24. Tr. II, 38. 

Hamilton discussed the catch benches with general manager, Roland Davis, and 

foreman, Joey Branham, at Revelation. Tr. II, 140. Hamilton testified that Revelation had 

exceeded the requirements of the ground control plan because the two safety benches combined 

were greater than 15 by 10 feet. Tr. II, 142. Hamilton believed that two smaller benches were 

better than one larger bench. Tr. II, 143. 

Davis testified that he and Hamilton read the ground control plan and interpreted item 

four as requiring a 15 by 10 foot catch bench if possible. Tr. II, 113. He testified that they then 

interpreted the following sentence requiring alternative procedures to only be applicable if no 

catch bench could be constructed.27 Tr. II, 114. He therefore concluded that since they could 

build two 10 by 5 foot catch benches, these would be allowable.28 Tr. II, 114. He further 

testified that after “intense discussions” on the matter, they determined that the two smaller 

catch benches would be safer than one larger catch bench. Tr. II, 114. Davis did not believe 

that a 15 by 10 foot catch bench would have made contact with the rock. Tr. II, 119. They built 

the first catch bench just below the Upper Alma seam and the other one approximately 25-30 

feet below it. Tr. II, 115. Davis testified that he did not need to contact MSHA about the catch 

bench issue. Tr. II, 127. 

Hamilton testified that he did not believe that a 15 by 10 foot bench would have made a 

difference. Tr. II, 156. He also testified that he understood item four of the plan to mean that 

they were permitted to construct two smaller catch benches “as long as we were within the 15-

by-10 measurements.” Tr. II, 161. 

On October 7, 2010, the upper Alma coal seam was being mined, which is a major seam 

that required a 15 by 10 foot catch bench. Tr. II, 33; SX-3, 11. Belcher testified that the flyrock 

event that occurred at the mine showed why two small catch benches were not as effective as 

one larger catch bench. Tr. II, 38. The boulder travelled approximately 400-500 feet in 

elevation on a steep terrain, exhibiting a “tremendous amount of force,” and the catch benches 

in place were not large enough to catch the rock. Tr. II, 39. Belcher testified that a 15-foot wide 

catch bench with a 10-foot high berm would have been capable of catching the boulder. Tr. II, 

39. Similarly, he believed that if Revelation had complied with the alternate provisions outlined 

in items 19-24, the boulder would have been stopped. Tr. II, 39-40. Specifically, the alternate 

provisions required that Revelation stay 20 feet from the outcrop, take a cut down to the coal 

seam, and maintain the outer portions. Tr. II, 39; SX-3, 12. This would have served as a 

 27 The alternate procedures listed in items 19-24 could have been done at the mine. Tr. II, 

167. 

28 In other areas where it was not possible to construct a 15 by 10 foot catch bench, 

Revelation followed the blast remediation plan. Tr. II, 116. 

36 FMSHRC Page 1595
highwall that would prevent rocks and other spoil materials from traveling over the hill. Tr. II, 

40. 

The danger of not constructing an adequately-sized catch bench is that a large rock 

rolling down the hill would not be captured, and would roll into an area where there are homes 

and public roads, posing a risk of injury or death to individuals. Tr. II, 47. Belcher testified that 

with two smaller catch benches instead of one larger catch bench, it was highly likely that an 

injury would occur. Tr. II, 47. He reached this conclusion because the boulder would not be 

caught by the smaller catch benches, and there were multiple families residing in the area where 

the boulder ended up. Tr. II, 47-48. If an individual were impacted by the boulder at issue here, 

they would suffer a fatal injury. Tr. II, 49. 

The elevation that the rock travelled was approximately 475 feet, and the overall 

distance that the rock travelled was between 800-1,000 feet. Tr. II, 58-59. The rock took a path 

down the hill, at times reaching within 50 feet of several homes, before hitting the asphalt road 

and coming to rest. Tr. II, 57. The impact of the rock hitting the county road created a 

significant divot.29 Tr. II, 57-58; SX-4, 25-26. 

Taking into account the prior history and the risks involved with mining in steep terrain 

above populated areas, Belcher determined that Revelation exhibited high negligence. Tr. II, 

60-61. Further, the ground control plan provided specific provisions to prevent such an event 

from occurring, which Revelation chose not to follow. Tr. II, 61. 

All three prior events at the mine took place prior to Revelation taking over control of 

the mine in October 2009. Tr. II, 79-80. The purchaser of a mine inherits the ground control 

plan because the history of the site’s prior occurrences is highly relevant to the plan. Tr. II, 61-

62. The blast control plan contains the history of previous events at the mine, so that a new

operator would be aware of these events. Tr. II, 63-64. The blast control plan at issue in this 

case mentioned the previous incident on January 31, 2009. Tr. II, 64; SX-3, 11. 

Belcher testified that the operator could have made an appointment to speak with him 

about amending their ground control plan. Tr. II, 65-66. Prior to October 7, 2010, no one at 

Revelation contacted Belcher about how to interpret item 4 of the plan or anything regarding 

29 Davis also participated in an investigation, which consisted of assisting or 

accompanying the Kentucky state inspectors. Tr. II, 96. Davis disagreed with Belcher’s 

conclusion as to the path of the rock, stating that it went 130-140 feet to the right, and did not 

make contact with the benches. Tr. II, 98-111. 

After the evidence had been reviewed, Davis was interviewed by MSHA and the 

Kentucky investigators. Tr. II, 111. MSHA raised the 15 by 10 foot catch bench issue, and 

Davis responded that Revelation tried to build such a catch bench in October 2009. The outslope was too steep, and there was no dirt material, so building the 15 by 10 foot catch bench 

was not possible. Tr. II, 112. 

36 FMSHRC Page 1596
catch benches. Tr. II, 66-67. However someone at Revelation had contacted MSHA in order to 

discuss amending a provision of the plan that dealt with drill bit diameters. Tr. II, 67. 

Belcher marked the citation as an unwarrantable failure to comply with the ground 

control plan because the operator was aware of the conditions and there was a deliberate 

decision to build two smaller benches rather than the one larger one as required by the plan. Tr. 

II, 67-68. 

ANALYSIS 

1. Citation No. 8257015 was Properly Issued for a Violation of 30 C.F.R. §77.1000

Citation No. 8257015 was a 104(d)(1) citation issued on December 29, 2010. It was 

marked Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The 

Citation states: 

The Operator has failed to follow their acknowledged ground control plan to prevent a 

flyrock event that occurred on December 21, 2010 during blasting operations. The blast 

was identified as shot #255 and was detonated at 9:01 am according to the shot report. 

A blast remediation plan outlining specific blasting safety pre-caution measures had 

been previously incorporated into the ground control plan and acknowledged on April 

26, 2010. A previous flyrock event had occurred at this same mine on November 19, 

2008. The purpose of the acknowledged ground control and blasting safety pre-cautions 

is to prevent a similar occurrence of flyrock. The blasting plan contained in the 

acknowledged ground control plan for this shot was not followed as follows:1) 

Sufficient burden was not maintained on the side of the shot toward the dwellings to 

insure the blast was directed away from the occupied dwellings that were impacted by 

the flyrocks.2) The shot detonated on 12-21-10 was not completely video recorded 

during and after the shot as outlined in the plan.3) The maximum amount of explosives 

allowed to be detonated within an 8 millisecond delay was exceeded. The blast was 

detonated in rock strata between the Thacker and Cedar Grove coal seams identified as 

Pit #19, causing 4 separate rocks measuring between 4 x 4 and 13 x 13 to be cast from 

the blast and land in the yards of two residences located on Big Blue Springs of 

Blackberry Creek. One of the smaller rocks, measuring approximately 4 by 4 struck the 

window of a residence occupied by Gary Hatfield. This type of practice presents a high 

degree of risk of serious injury or death to residents living below the mine. The mine 

Operator has engaged in aggravated conduct constituting more than ordinary negligence 

by not following their acknowledged ground control plan. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

SX-13. 

The Citation references 30 C.F.R. §77.1000, which states: 

36 FMSHRC Page 1597
Each operator shall establish and follow a ground control plan for the safe control of all 

highwalls, pits and spoil banks to be developed after June 30, 1971, which shall be 

consistent with prudent engineering design and will insure safe working conditions. The 

mining methods employed by the operator shall be selected to insure highwall and spoil 

bank stability. 

The Secretary argues that Revelation violated the ground control plan by failing to keep 

at least 14 feet of burden in front of the shot; by failing to fully record the blast after the video 

stopped during the shot; and by exceeding the amount of explosives which could be detonated 

within eight milliseconds. 

The Respondent asserts that a flyrock incident alone is not enough to sustain a citation, 

and that the Secretary must prove the specific grounds of the citation. The Respondent argues 

that it maintained the proper amount of burden, and the inspector’s belief that insufficient 

burden was used was based on hearsay statements from an unnamed informant, making it 

unreliable. The Respondent further argues that the Secretary did not submit sufficient evidence 

that the amount of explosives used exceeded the amounts permitted in the plan. 

Based upon the totality of the evidence presented at hearing, the Secretary has met its 

burden of proving that Revelation violated §77.1000 by failing to follow its ground control plan 

in three key respects. 

First, Respondent failed to keep at least 14 feet of face burden as required by the ground 

control plan. This requirement was to ensure that “all blasts will be directed away from homes.” 

Tr. I, 68; SX-16. Belcher conducted a thorough investigation, which involved numerous 

interviews, visits to the sites, and reviews of plans, and determined that the minimum burden was 

not being maintained. Tr. I, 50-53, 64-65, 108-112. I credit Belcher’s informed testimony that 

his investigation revealed that the materials were being loaded out too quickly and the shots were 

being encroached upon. Tr. I, 71, 117-119. As evidence of this encroachment, Belcher pointed 

to four holes that were drilled but not loaded. Tr. I, 117-118. Failing to leave sufficient burden 

makes it highly likely that a flyrock event, like the one that occurred in this case, will happen. Tr. 

I, 96, 98. 

Second, the Respondent failed to fully record the blast, as required by the ground control 

plan. The plan stated, “A video camera will be used to monitor each shot and record the area 

prior to, during and after the blast.” SX-16, 8. Shots occur quickly, often over the course of only 

a few seconds, so recording the shot provides the operator the opportunity to review the shot. Tr. 

I, 76. The video evidence submitted at hearing, as well as the testimony, shows that during the 

recording of the shot, the camera switched off. Tr. I, 73-74; SX-16. Belcher estimated that the 

video only captured 30-40% of the shot. Tr. I, 77. 

The Respondent argued that even though the camera accidentally shut off, it still 

complied with the requirements in the ground control plan. It argues that the ground control plan 

requires taping before, during, and after the shot, but does not provide specific time frames for 

36 FMSHRC Page 1598

The Citation references 30 C.F.R. §77.1000, which states: 
taping before and after the shot. Shot 255 consisted of 30 blasts, spaced eight milliseconds apart, 

so that the shot took less than one quarter of a second. Therefore, Respondent argued that even 

though the video shut off after a few seconds, there was no violation of the plan. Resp. PostHearing Brief, at 13-15. 

Respondent’s hypertechnical understanding of the taping provision in the ground control 

plan is unreasonable. The purpose of the taping requirement is to allow blasters and other mine 

personnel the opportunity to review the shot. This includes reviewing the conditions before, 

during, and after the shot. The speed at which a shot occurs further emphasizes the need for a 

full video of the shot, which includes the period before and after. According to Respondent’s 

interpretation of the plan, a half-second video would comply. However, such a video would 

provide little informative value in reviewing the shot. The ground control plan requires a 

reasonable taping of the area before and after the shot, such that the video may be used for the 

purposes it was intended. In this instance, the video shut off prior to a reasonable taping of the 

period after the shot. Therefore, I find that the Respondent violated this provision of the plan. 

Third, the Respondent violated the ground control plan by exceeding the amount of 

explosives that could be detonated within each eight millisecond interval. The ground control 

plan contained a scale distance formula that required an eight-millisecond delay. Tr. I, 83. After 

reviewing the blast record provided by the company, Belcher determined that two of the holes 

overlapped each other, thereby not complying with the eight-millisecond delay requirement. Tr. 

I, 83-84, 88, 135-136; SX-17. At hearing, the issue of the correct maximum weight of explosives 

per eight millisecond interval was in dispute. Various witnesses and documents represented that 

the number was 254.9, 419, and 419.5. Tr. I, 91-92, 171-173, 231-234; SX-17. The 

discrepancies between the original and corrected blast reports appeared to be largely irrelevant, 

as both blast reports provided that “Max. Allow. Chg. Wt. per 8 ms w/o Seismograph” was 354.8 

pounds. SX-17; RX-A. No seismograph was permitted under the plan, making the 354.8 figure 

the appropriate one. This figure corroborates Belcher’s analysis and conclusion. 

Any one of these violations of the ground control plan would constitute a violation of 

§77.1000. The Secretary has more than met its burden in proving that the combination of the

three was a violation of the regulation. 

The Respondent’s repeated admonitions that the hearsay evidence of an anonymous 

miner is inherently unreliable are misplaced. See e.g. Resp.’s Post-Hearing Brief, at 11. The 

Commission rules explicitly allow for the maintenance of anonymity for miner informants. 29 

C.F.R. §2700.61. “The purpose of the privilege is to protect the public interest by maintaining a 

free flow of information to the government concerning possible violations of the law and to 

protect persons supplying such information from retaliation.” Bright Coal Co., Inc., 6 FMSHRC 

2520, 2522-2523 (Nov. 1984). Furthermore, the Commission’s rules explicitly allow for the 

admission of hearsay evidence, when such evidence is “material and relevant.” Mid-Continent 

Resources, Inc., 6 FMSHRC 1132, 1135 (May 1984); see also REB Enterprises, Inc., 20 

FMSHRC 203, 206 (March 1998); 29 C.F.R. §2700.63. Moreover, the Commission has stated 

that: 

[P]roperly admitted hearsay testimony, and reasonable inferences drawn from it, may 

constitute substantial evidence upholding a judge's decision if the hearsay testimony is

36 FMSHRC Page 1599
surrounded by adequate indicia of probativeness and trustworthiness. Hearsay 

testimony “may be treated as substantial evidence, even without corroboration, if, to a 

reasonable mind, the circumstances are such as to lend it credence.” 

Id. at 1135-1136 (citations omitted). I find that the miner informant’s hearsay information told 

to Belcher was both probative and trustworthy. To exclude it for the reasons provided by 

Respondent would eviscerate the miner informant rule. 

2. The Violation was Significant & Substantial

I further find that the conditions were Significant and Substantial in nature. S&S 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 or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

As is well recognized, in order to establish the S&S nature of a violation, the Secretary 

must prove: “(1) the underlying violation 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 

1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co., 

Inc. v, Sec'y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). 

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. The element is established only if the Secretary proves “a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel 

Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on 

the particular facts surrounding the violation and must be made in the context of continued 

normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. 

Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided 

additional guidance: “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 (August 1984); 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

Further, “The Secretary need not prove a reasonable likelihood that the violation itself 

will cause injury.” and “the absence of an injury-producing event when a cited practice has 

occurred does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 

36 FMSHRC Page 1600
FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 

FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); 

and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission and 

Courts have observed 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 1275, 1278-79 

(Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995). 

The first element of Mathies—the underlying violation of a mandatory safety standard—

has been clearly established. As to the second element of Mathies—a discrete safety hazard, that 

is, a measure of danger to safety, contributed to by the violation—has also been clearly 

established by the record. As discussed supra, the cited condition contributed to the danger of a 

flyrock incident. 

I find that the third element of the Mathies test—a reasonable likelihood that the hazard 

contributed to will result in an injury—has been satisfied here. The hazard of large rocks flying 

into a populated area and a public road was likely to lead to an injury. Under Mathies, the fourth 

and final element that the Secretary must establish is that there is a reasonably likelihood that the 

injury in question will be of a reasonably serious nature. The type of injury caused by a flyrock 

making contact with an individual is death. 

 Respondent argues that a violation can only be found to be S&S if it affected the health 

and safety of miners. In the instant case, Respondent argues that no miners were in danger, and 

the Secretary presented no evidence that flyrock came anywhere near where a miner or other 

employee of the mine could have been injured. Respondent argues that the Secretary failed to 

present evidence showing how the inadequate taping would reasonably result in a serious 

injury. 

Respondent’s argument that a violation may only be S&S if it can lead to a serious injury 

of a miner, is both bizarre and incorrect. While it is true that Congress passed the Mine Act to 

ensure the health and safety of miners, the Commission has never interpreted S&S in such a 

narrow fashion so as to limit it to the health and safety of miners. Both §104(d) and the seminal 

Commission cases that developed the criteria for S&S spoke only of the type of injury, not the 

status of the individual who suffered such injury. See Mathies, 6 FMSHRC 1 (Jan. 1984), 

Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Oct. 2011); Musser Engineering, Inc. and 

PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010). One need not come up with an example that 

illustrates the absurdity of this position, because this case does so in spades. To say that a 

violation that placed persons who resided in the path of flyrocks at grave risk was not significant 

and substantial because they may not meet the statutory definition of miners is absurd. The 

Mine Act makes no such distinction when persons lives are at risk. 

36 FMSHRC Page 1601
3. The Violation was the Result of High Negligence and Unwarrantable Failure

In the citation at issue, Belcher found that the violations were the result of high 

negligence and an unwarrantable failure to comply with the standard. High negligence is 

described as when “[t]he operator knew or should have known of the violative condition or 

practice and there are no mitigating circumstances.” 30 C.F.R. §100.3(d), Table X. Conversely, 

moderate negligence is shown when “[t]he operator knew or should have known of the violative 

condition or practice, but there are some mitigating circumstances.” Id. Low negligence is 

served for situations where there are “considerable” mitigating circumstances. Id.

In the instant case, Revelation was on notice that there had been previous flyrock events 

at the mine. The S-4 Netley Branch Mine had a Blast Remediation Plan as part of the Ground 

Control Plan, which indicated that there had been a previous flyrock accident. SX-16; Tr. I, 

126-127. Furthermore, Revelation was on notice that strict compliance with the blast 

remediation plan was necessary in order to prevent future flyrock accidents. Tr. I, 127, 180. 

The plan was explicit in its requirements that sufficient burden be left in front of the 

shot, that the shot be videotaped, and that specific amounts of explosive be used. Tr. I, 66, 73, 

81-82; SX-13. Despite being on notice of these requirements, Revelation violated the plan in 

each respect. The Respondent presented some evidence that Wallen fell while trying to 

videotape the shot because it was slick where he was standing. Tr. I, 251. However, the 

Respondent took no precautions to avoid this possibility, such as using a tripod, despite the 

adverse weather conditions that made a fall likely. Even laypersons know that attempting to 

hold a video camera by hand can produce images flawed by motion. Wallen’s lack of concern 

for producing a stable, clearly focused video of sufficient length to be usable for post-shot 

analysis directly resulted in a violation. Furthermore, Revelation presented no mitigating 

circumstances regarding the other two violations that make up this citation. Revelation’s choice 

to hire a blasting contractor does not mitigate its negligence, as the mine operator bears ultimate 

responsibility to ensure that the ground control plan is followed at all times. See Speed Mining, 

528 F.3d 310 (4th Cir. 2008); Buffalo Mining Co., 1 FMSHRC 1740 (Oct. 1979) (ALJ). 

Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. I find that none existed. Therefore, I find the Secretary’s designation 

of “high” negligence appropriate. 

The Commission has recognized the close relationship between a finding of 

unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125, 

139 (Mar. 2007) see also Consolidation Coal Company, 22 FMSHRC 340, 353 (2000) (holding 

that if there is mitigation, an unwarrantable failure finding is inappropriate). Emery Mining 

Corp., defines an unwarrantable failure, as “aggravated conduct constituting more than ordinary 

negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be 

characterized as reckless disregard, intentional misconduct, indifference, or serious lack of 

reasonable care. Id. at 2004; see also Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995). 

36 FMSHRC Page 1602
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors 

exist, including (1) the extent of the violative condition, (2) the length of time that the 

violative condition existed, (3) whether the violation posed a high degree of danger, (4) 

whether the violation was obvious, (5) the operator's knowledge of the existence of the 

violation, (6) the operator's efforts in abating the violative condition, and (7) whether the 

operator had been placed on notice that greater efforts were necessary for compliance. 

Manalapan Mining Co., 2013 WL 754106, *4 (Feb. 2013), citing IO Coal, 31 FMSHRC 1346 

(Dec. 2009). While each factor does not need to be present in order to find unwarrantable 

failure, all factors must be considered. Id. 

The cited condition involved three violations of the plan, each of which was in place to 

prevent a flyrock incident. Though they occurred quickly, these three violations in a single shot 

was somewhat extensive. The factor of the length of time of the violation is inapplicable here, 

as shots occur quickly, and any violations would occur just as quickly. 

The violation at issue here posed a high degree of danger. The inspector testified that 

each of these three violations increased the likelihood of a flyrock accident, which occurred in 

this instance. Tr. I, 103-104, 178-179. The flyrocks from this site were large in size and 

travelled to areas where people live and travel. Tr. I, 46. Additionally, the operator had been 

placed on notice that greater efforts were necessary for compliance. As noted supra, there were 

previous flyrock events at this site, and the mine was on a Blast Remediation Plan to prevent 

future flyrock accidents. Furthermore, this mine site was previously cited for flyrock events, 

and past citations are relevant to the issue of whether Respondent had notice. IO Coal, 31 

FMSHRC at 1353-1355. Respondent argued that these citations were issued prior to its taking 

over the mine, however such arguments do not negate the notice that these citations provided. 

Flyrocks can cause fatal injuries, yet Respondent failed to strictly follow their Ground Control 

Plan as required. The operator took no efforts in abating the violative condition prior to the 

flyrock incident and citation. I find the unwarrantable failure determination to be correct. 

4. The §103(k) Order No. 8257014 was Properly Issued

Issuance of the 103(k) Order was necessary and proper in this instance. Section 103(k) 

of the Act provides, in relevant part, that “[i]n the event of any accident occurring in a coal or 

other mine, an authorized representative of the Secretary, when present, may issue such orders 

as he deems appropriate to insure the safety of any person in the coal or other mine.” 30 U.S.C. 

§813(k). 

In a companion case to the instant case, the Commission confirmed that a large rock 

leaving a mine and landing in a residential area, with no injuries, constituted an “accident” for 

purposes of issuing a 103(k) Order. Revelation Energy, 2013 WL 6792685 (Nov., 2013). The 

Commission rejected the operator’s arguments that the definition of “accident” in §103(k) was 

36 FMSHRC Page 1603
limited to the more narrow definition of “accident” in the definitions provided in 30 C.F.R. 

§50.2(h), stating that the latter definition only applied for reporting purposes. Id. at *4. 

Section 50.2 plainly limits its application to terms “used in this part,” that is, Part 50 of 

MSHA's regulations (the reporting regulations). 30 C.F.R. § 50.2. In contrast, the 

definition of ““accident” in section 3(k) applies to the entire Mine Act, as section 3 of the 

Mine Act specifically states that the definition of the term “accident” set forth in 

paragraph (k) applies “[f]or the purpose of this Chapter ....” 30 U.S.C. § 802. Thus, 

section 3(k) is the applicable provision for purposes of determining what constitutes an 

“accident” under section 103(k). 

Id. The Commission “easily” concluded that such a flyrock event was an “accident” for purposes 

of §103(k). The Commission’s decision is directly on point and controlling for this case. 

5. Citation No. 8257006 was Properly Issued for a Violation of 30 C.F.R. §77.1000

Citation No. 8257006 was a 104(d)(1) citation issued on October 22, 2010. It was 

marked Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The 

Citation states: 

The Operator failed to follow their acknowledged ground control plan to prevent a 

flyrock event that occurred on October 7, 2010, during blasting operations. A blast 

remediation plan outlining specific blasting safety pre-caution measures was 

incorporated into the ground control plan and acknowledged on March 17, 2009 in 

response to a flyrock event that occurred on January 31, 2009. The purpose of that 

acknowledged plan was to prevent a similar occurrence of flyrock. Two smaller than 

designed safety catch benches (5 high x 10 wide) were constructed, instead of the 

designed size of 10 high x 15 wide safety catch bench, prior to the October 7th blast. 

The ground control plan states that when the catch bench cannot be constructed, then a 

solid 20 foot wide berm will be left at the outcrop edge of the pit. Rolland Davis, 

General Mine Manager stated that he was familiar with the acknowledged ground 

control plan and knew what size the safety catch bench should have been before blasting 

operations occurred. The blast was detonated in an area above the Upper Alma coal 

seam, causing a large rock measuring 4.5 x 4.5 x 6, to leave the blast site, and roll down 

the hillside, jump the safety catch benches, leave the mine property and continue rolling 

down the hillside until crossing a county road (Old Shoe Branch of Barrenshee Creek) 

and landing in the creek. The large rock narrowly missed striking two residences by 

approximately 40 to 50 feet. This type of practice presents a high degree of risk of 

serious injury or death to residents living below the mine. The mine Operator has 

engaged in aggravated conduct constituting more than ordinary negligence by not 

following their acknowledged ground control plan. This violation is an unwarrantable 

failure to comply with a mandatory standard. 

36 FMSHRC Page 1604
SX-1. 

The Citation references 30 C.F.R. §77.1000, which as discussed supra, requires an 

operator to follow the ground control plan. 

The Secretary contends that item four of ground the control plan required Revelation to 

build a 15-foot by 10-foot catch bench, when practical. And in the instant case, it was practical. 

 As such, Revelation’s construction of two 10-foot by 5-foot catch benches in lieu of one 15-

foot by 10-foot catch bench was a violation of the plan. If the larger bench was not practical, 

then the Secretary contends that the plan required Revelation to follow the alternate provisions 

laid out. 

The Secretary argues that the Respondent’s failure to comply with the ground control 

plan was highly likely to result in fatal injury to at least one person. This is due to the fact that 

the terrain below the S-1 Hunt’s Branch Mine is quite steep and slopes sharply towards the 

homes below, where many residents live. Further, the Secretary argues that the violation was 

S&S because an eight-ton flyrock is highly likely to result in fatal injury to persons in proximity 

to it. 

The Secretary argues that Revelation was highly negligent in failing to comply with 

their blast remediation plan because Revelation knew the mine had a propensity to produce 

large flyrock, knew that the mine sat above homes and a public road, and still did not comply 

with the catch bench requirements of the plan. The Secretary argues for the same reasons that 

the violation was an unwarrantable failure, adding that Revelation had not been in compliance 

for almost a year. 

With regard to Citation No. 8257006, the Respondent argues that the ground control 

plan only required it to build a 10 by 15 foot catch bench if practical. Relying on the indefinite 

article in the sentence, Respondent further argues that the alternative procedures were only 

necessary if no catch bench could be constructed. The Respondent also argues that even if a 10 

by 15 foot catch bench had been constructed, there is no guarantee that such a catch bench 

would have been able to stop the flyrock at issue. 

Respondent argues that the violation was not S&S because the 10 by 15 foot catch bench 

would not have caught the flyrock, meaning that the two smaller catch benches did not make it 

likely that a serious injury would occur. Respondent argues that the violation was not high 

negligence or unwarrantable failure because it was either due to a reasonable interpretation of 

the plan, or an honest mistake. For these reasons, Respondent argues that if the violations are 

upheld the penalties should be reduced and modified to 104(a) citations, with low negligence 

and no S&S designation. 

Based upon the totality of the evidence presented at hearing, the Secretary has met its 

burden of proving that Revelation violated §77.1000 by failing to follow its ground control plan 

in constructing its catch bench. 

36 FMSHRC Page 1605
Paragraph four of the Blast Remediation Plan, which is quoted in full supra, states in 

relevant part that a “15 foot catch bench...with a 10 foot high berm, will be installed on all major 

seams...to be mined at all times when practical, prior to blasting in the area.” SX-3. The 

provision further states that “[i]n the event that a catch bench cannot be constructed, then items 

[19-24] of the Blast Remediation Plan for Areas where a Catch Bench is not constructed will 

apply.” SX-3. The plain language of the plan, combined with the inspector’s testimony, makes 

it clear that the Respondent was required to build a 10 by 15 foot catch bench if it was practical 

to do so. If the conditions made the construction of such a catch bench impractical, then the 

Respondent was required to follow the alternate procedures detailed in the plan. Rather than 

building a 15 by 10 foot catch bench at the Upper Alma seam, which is one of the “major seams” 

specified in the plan, Respondent constructed two catch benches that measured between five and 

10 feet high and five feet wide. Tr. II, 25, 114. 

Respondent’s interpretation of the plan is unreasonable as it essentially makes much of 

the plan meaningless. The Respondent argued that it was impractical to construct a 10 by 15 

foot catch bench below the Upper Alma Seam. Tr. II, 119, 124-128, 144. Therefore, instead of 

following the alternate procedures, or consulting MSHA about its alternate interpretation, it 

chose to build two five by ten foot catch benches. The Respondent argued that because the plan 

specified that the alternative procedures should be followed “in the event that a catch bench 

can’t be constructed,” rather than stating “in the event that the catch bench can’t be constructed,” 

the alternate procedures were only required when no catch bench could be constructed.30

(emphasis added.) Relying entirely on the use of the indefinite article (“a”), rather than the 

definite article (“the”), Respondent argued that it took this course of action because it interpreted 

the alternate procedures in the plan as only being required in no catch bench could be 

constructed. 

Based on this interpretation, Respondent was free to determine the practicality of 

building the required catch bench, and if it determined that it was impractical, it could build 

whatever size catch bench it so desired. The Respondent’s argument transforms the size 

requirement in the plan to a mere suggestion that can easily be ignored so long as some sort of 

catch bench was constructed.31 The Respondent cites the general principal of contract law that 

the interpretation “which gives meaning to all words and provisions of a contract is favored.” 

Eastern Gas and Fuel Associates v. Mid-west Raleigh, Inc., 374 F.2d 451, 454 (4th Cir. 1967). 

However, the Respondent’s contorted attempts to give meaning to a single indefinite article 

essentially negates the meaning of the entire provision.32 I do not credit Respondent’s witnesses 

30 Respondent similarly suggested that the provision should have read “such catch bench.” 

31 Respondent focused much of its evidence and argument at hearing in trying to prove 

that construction of a 15 by 10 foot catch bench was impractical. However, after the citation, a 

15 by 10 foot catch bench was constructed. Tr. II, 82-83. 

36 FMSHRC Page 1606
essentially negates the meaning of the entire provision.32 I do not credit Respondent’s 

witnesses as to their contemporaneous interpretation of the provision. If anything, this 

interpretation appeared to be a post hoc rationalization for the open flouting of a plan provision. 

I find that the provisions of the ground control plan gave Respondent two options. The 

first option was that it was required to construct a 15 by 10 foot catch bench, if conditions made 

such a catch bench practical to construct. If it was impractical to construct a 15 by 10 foot catch 

bench, then Respondent was required to follow the alternate procedures in the plan. It could not 

simply construct one or several smaller catch benches to suit its convenience. 

Respondent’s second argument concerning the path of the flyrock is similarly unavailing. 

 At hearing, Respondent presented testimony of how the flyrock followed a different path than 

that presumed by the inspector and that a 10 by 15 foot catch bench would not have been any 

more successful at stopping the flyrock that was projected on October 7, 2010. Tr. II, 102, 105. 

Section 77.1000 does not require that a flyrock occur for the regulation to be actionable. The 

regulation simply requires that an operator follow the ground control plan, and any failure to do 

so is a violation of the regulation. I find the inspector’s testimony that his investigation 

concluded that the flyrock followed such a path as would have been stopped by the 10 by 15 foot 

catch bench to be plausible. However even if this were not the case, and Respondent proved that 

the flyrock would not have been stopped by the required catch bench, it’s failure to construct the 

catch bench would still have been a violation of the regulation. 

6. The Violation was Significant & Substantial

I further find that the conditions were Significant and Substantial in nature. The first 

element of Mathies—the underlying violation of a mandatory safety standard—has been clearly 

established. As to the second element of Mathies—a discrete safety hazard, that is, a measure of 

danger to safety, contributed to by the violation—has also been clearly established by the record. 

The 15 by 10 foot catch bench required in the plan, as well as the alternate procedures, were 

intended to prevent flyrock from reaching public areas. Failure to construct such obstacles to 

flyrock contribute to the hazard of a large flyrock entering public areas and making contact with 

individuals. 

I find that the third element of the Mathies test—a reasonable likelihood that the hazard 

contributed to will result in an injury—has been satisfied here. The hazard of a rock several feet 

in diameter and weighing several tons flying into a populated area and a public road was likely 

to lead to an injury. Under Mathies, the fourth and final element that the Secretary must establish 

is that there is a reasonably likelihood that the injury in question will be of a reasonably serious 

nature. The type of injury caused by a flyrock making contact with an individual is death. 

32 Respondent’s argument that every letter and word of the plan must be accepted in only its 

strict literal meaning, without consideration of the purpose of each provision or the possibility of 

mistake, is further weakened by the fact that the section outlining the alternative procedures had 

an enumerating error. 

36 FMSHRC Page 1607
7. The Violation was the Result of High Negligence and Unwarrantable Failure

In the citation at issue, Belcher found that the violations were the result of high 

negligence and an unwarrantable failure to comply with the standard. The preamble to the Blast 

Remediation Plan stated that a flyrock accident had occurred at the mine in 2009 causing a large 

boulder and another rock to project off the mine property. SX-3, 9; Tr. II, 27-28, 62-64. The 

inspector testified that the mine site had at least three or four different flyrock events in the past. 

Tr. 23-24. Therefore, Revelation was aware that the mine had a propensity to produce large 

flyrocks. Furthermore, Revelation knew that the mine was located above residences and a 

county road, and that the terrain between the mine and these areas was very steep. Tr. II, 23-24, 

28, 57-59. It was precisely because of these conditions and the mine’s history that the Blast 

Remediation Plan specified that Revelation was required to construct a 15 by 10 foot bench or 

take alternate procedures. SX-3, 16; Tr. II, 24, 37. In spite of this information, Revelation 

constructed two smaller catch benches, at the minimum size that their equipment could 

construct them. Tr. II, 61, 68, 130-132. 

Revelation argued that it employed a reasonable interpretation of its ground control 

plan. However, as I have found that interpretation to be unreasonable, I do not find that it 

constituted a mitigating circumstance. If Revelation believed at the time that its interpretation 

of the plan was reasonable, then it should have called MSHA and asked for advice. Tr. II, 66-

69. Alternately, if it believed that its method of building two smaller catch benches was safer,

then it should have sought to modify that portion of the plan. Tr. II, 67. Revelation availed 

itself of neither of these options. Therefore, I find that violation was the result of high 

negligence. 

The violation was also an unwarrantable failure to comply with the standard. As 

discussed supra, the operator had knowledge of the violation, it knew the history of previous 

flyrock events, and the violation at issue posed a high degree of danger. Furthermore, the noncompliant catch benches were approximately half the size of those required and had been in 

place for a significant period of time prior to the citation. Revelation constructed these catch 

benches in open defiance of the plan. Prior to issuance of the citation, Revelation took no 

efforts in abating this condition. For the foregoing reasons, I find that the violation was an 

unwarrantable failure. 

8. Penalty

Having affirmed the Secretary’s determinations in all respects no deviation in the civil 

penalty is necessary. I have considered each of the six statutory criteria set forth in Section 

110(i) of the Act, and find that the Secretary’s proposed penalties are appropriate. 30 U.S.C. 

§820(i). As discussed supra, the mines had a history of previous violations, Respondent had

high negligence in each citation, and these citations were found to be S&S. The parties have 

stipulated that the proposed penalties will not affect Revelation’s ability to remain in business 

and that Revelation abated the violations in good faith. JX-1; Tr. I, 19-20. Within the calendar 

year prior to the issuance of Citation 8257006, Revelation produced 304,734 tons of coal, with 

36 FMSHRC Page 1608
the S-1 Hunt’s Branch Mine producing 177,984 tons. SX-10. Within the calendar year prior to 

the issuance of Citation 8257015, Revelation produced 604,734 tons of coal, with the S-4 

Netley Branch Mine producing 425,000 tons. SX-10. 

 ORDER

 For the reasons set forth above, the citations are AFFIRMED as indicated. Revelation 

Energy, LLC, is ORDERED to pay $23,800.00 for the violation set forth in Citation No. 

8257006 and $52,500.00 for the violation set forth in Citation No. 8257015. Revelation shall 

pay the Secretary of Labor the total sum of $76,300.00 within 30 days of the date of this 

decision.33

 /s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: (Certified Mail) 

Willow Eden Fort, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church St., Suite 230, 

Nashville, TN 37219-2440 

David J. Hardy, Esq. & Christopher D. Pence, Esq., Hardy Pence, LLC, 500 Lee St. East, Suite 

701, Charleston, WV 25301 

/mzm 

 33 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. 

36 FMSHRC Page 1609
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

June 6, 2014 

DECISION GRANTING SUMMARY DECISION

DISMISSAL ORDER

Before: Judge Gill 

This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). This case 

concerns a single 104(a) citation, Citation No. 6585510, and was originally set for hearing on 

October 1 and 2, 2013. 

PROCEDURAL HISTORY

On August 9, 2013, the Respondent, Marco Crane, filed a motion for summary decision. 

The Secretary of Labor opposed this motion and filed a memorandum in response on August 23, 

2013. After reviewing the pleadings, I determined that the citation was issued under the wrong 

standard. The Commission’s case law suggested that the most appropriate response would be to 

order the Secretary to show cause why the citation should not be amended. The hearing was 

continued, and the Secretary was ordered to show cause as to why the citation should not be 

modified from a violation of 30 C.F.R. § 56.16007(b) to a violation of 30 C.F.R. § 56.14100(c) 

by filing a written explanation with the court. In the order to show cause, I indicated that I was 

inclined to grant the operator’s motion for summary decision if the citation was not amended. 

The Secretary responded to the order, and Marco Crane requested and was granted permission to 

file a reply to the Secretary’s response. 

UNDISPUTED FACTS

Marco Crane, a crane company, was providing general hooking and hoisting services to 

the Freeport McMoRan Miami Inc. mine, when it was cited for a violation of 30 CFR § 

56.16007(b) on February 28, 2012. Section 56.16007(b) requires that hitches and slings used to 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

MARCO CRANE, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2012-894-M 

A.C. No. 02-00112-287258 MWX 

Mine: Freeport McMoRan Miami Inc. 

36 FMSHRC Page 1610
hoist materials shall be suitable for the particular material handled. The inspector issued a 

citation after finding two frayed slings among the items stored in the storage compartment of a 

flatbed truck trailer during his inspection. The inspector did not observe the damaged slings 

being used during his inspection, and he destroyed them after issuing the citation. The trailer 

where the slings were stored was not capable of hoisting materials. The slings were not in use 

during the inspection, and the truck was not being used to hoist anything. 

THE PARTIES’ ARGUMENTS

 In his response, the Secretary declined to seek leave to modify the citation. Instead, the 

Secretary argues that the cited standard was the appropriate standard. He contends that the phrase 

“used to hoist materials” was included to clarify that 30 C.F.R. § 56.16007(b) applies to slings 

that are intended for the purpose of hoisting material, as opposed to slings meant for other 

purposes, and that the standard does not require a defective sling to be hoisting material during 

an MSHA inspection for a violation to occur. Finally, the Secretary argues that the inspection 

reveals that the defective slings were used by the Respondent to hoist material. 

 In its reply to the Secretary’s response, Marco Crane argues that the phrase “used for 

hoisting” means that the slings in question must be in use, or at least have been used, before a 

citation can be issued, and the record does not support that the slings were “intended to be used” 

or “damaged from use.” The operator further argues that the Secretary’s interpretation of the 

regulation makes it virtually impossible to comply with the standard, and that the Secretary has 

provided neither justification for deference to its interpretation nor notice of its intended 

interpretation. 

ANALYSIS

 The granting of motions for summary decision by a Commission ALJ is governed by 

Commission Rule 67, 29 C.F.R. §2700.67. This rule states that a motion for summary decision 

shall be granted only if the entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as to any 

material fact; and (2) that the moving party is entitled to summary decision as a matter of law. 

 As discussed in the order to show cause, I find that there are no contested issues of 

material fact in relation to the citation at issue. This satisfies the first requirement of the 

summary decision standard.1

 Because that part of the standard has been satisfied, I must examine 

whether the moving party is entitled to summary decision as a matter of law. For the reasons 

discussed below, I find that the undisputed facts in the pleadings, read in the light most favorable 

to the Secretary, are not sufficient to prove a violation of 30 C.F.R. § 56.16007(b). 

The citation at issue, Citation No. 6585510, was issued as a violation of 30 C.F.R. § 

56.16007(b). This regulation states that “[h]itches and slings used to hoist materials shall be 

suitable for the particular material handled.” 30 C.F.R. § 56.16007(b). The interpretation of this 

 1 The Secretary argues that Marco Crane’s denial of a request to admit that the defective 

slings were not tagged out of service constitutes a disputed issue of material fact, but that is not a 

material fact under the standard at issue here. 

36 FMSHRC Page 1611
citation is disputed by the parties, with the conflict centered around the phrase “used to hoist 

materials.” 

Commission case law states that if the meaning of a regulatory provision is plain, the 

provision should be interpreted so as to give effect to that plain meaning. Exportal Ltd. v. United 

States, 902 F.2d 45, 50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 

1984). When “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.” Martin Cnty. Coal, 28 FMSHRC 247, 255 

(May 2006). In determining whether a provision's meaning is plain, courts apply all of the 

traditional tools of interpretation, including both the language of the particular provision at issue 

and the language, structure, and purpose of the statutory scheme as a whole. Tacoma, Wash. v. 

FERC, 331 F.3d 106, 114 (D.C. Cir. 2003); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288 

(D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001). If the regulation is ambiguous, the Court will 

defer to the Secretary’s interpretation of the regulation unless it is “plainly erroneous or 

inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). 

To prove a violation of 30 C.F.R. § 56.16007(b), the Secretary would have to present 

evidence of 1) use of a hitch or sling 2) to hoist materials. The Secretary would then have to 

present evidence that 3) the sling is inappropriate for the particular materials handled. This gives 

effect to the full text of the regulatory provision and is reasonable in the context of the regulatory 

scheme. There is potential ambiguity in that the regulation does not specify past, present, or 

future use, but the remainder of the provision indicates that something more than mere 

availability for use is meant. The word “particular” is key in this analysis, as it is impossible to 

know whether the slings are “suitable for the particular materials handled” absent evidence that 

the slings have actually been, or will actually be, used to hoist materials. Thus, an interpretation 

that reads actual use out of the regulation is erroneous. The reading proposed by the Secretary, 

stating that actual use is not required and that “slings used to hoist materials” means slings that 

are generally intended for the purpose of hoisting materials, as opposed to other types of slings, 

is plainly inconsistent with the regulation.2

 

The Secretary’s interpretation of the provision is problematic because would have farreaching results that are inconsistent with the regulation. The Secretary’s concern with potential, 

inadvertent use of inappropriate slings features heavily in his response to the order to show 

cause. He explains that the Respondent was cited because worn out slings were found in a 

storage compartment with other slings. Because these slings were of a type that are generally 

“used to hoist materials” and were stored with other, undamaged slings, the Secretary fears that 

an inattentive miner could potentially retrieve and use a damaged sling for hoisting. This is a 

valid concern, but it is not the type of hazard that this regulation is intended to address. 

 2

 The Secretary misconstrues the Court’s interpretation of the standard, arguing that 

under the Court’s interpretation, an operator could only be cited for a violation of 30 C.F.R. § 

56.16007(b) if an MSHA inspector observed damaged or otherwise improper slings in use during 

an inspection. This is not the case. Witness testimony or circumstantial evidence could be used to 

establish that a sling is not suitable for the material it is, was, or would soon be used to lift. 

36 FMSHRC Page 1612
The Secretary’s proposed interpretation only makes sense in the context of slings that are 

inappropriate for use because they are damaged. Different types of slings are appropriate for 

different types of lifts. If several types of slings are available in an operator’s on-site supply 

storage areas, it is also possible that an inattentive miner could select the wrong type of sling to 

lift a load. Thus, under the Secretary’s version of the regulation, an operator could be cited for 

simply having multiple different types of slings available. This is an absurd result. Requiring that 

slings be appropriate “for the particular material handled” suggests that Section 56.16007(b) 

contemplates the on-site availability of multiple different types of slings. This further supports 

the proposition that the regulation is concerned with the actual use of slings that are 

inappropriate for the particular material handled, not the mere availability of inappropriate slings. 

The overall structure of the statutory scheme also counsels against the Secretary’s 

interpretation. The Secretary’s concern with the potential for inadvertent use of damaged slings 

is addressed under a different standard. Section 56.14100(c) requires that “[w]hen defects make 

continued operation hazardous to persons, the defective items including self-propelled mobile 

equipment shall be taken out of service and placed in a designated area posted for that purpose, 

or a tag or other effective method of marking the defective items shall be used to prohibit further 

use until the defects are corrected.” 30 C.F.R. § 56.14100(c).3

 The fact that this provision 

addresses the hazard posed by the availability of damaged equipment, which would include 

damaged slings, further indicates that the cited standard, 30 C.F.R. § 56.16007(b), was not meant 

to deal with that specific hazard. A citation under this standard would address the risk of 

inadvertent use that the Secretary has identified, and Citation No. 6585510 should have been 

modified accordingly. 

Having established that this citation requires something more concrete than the mere 

availability of inappropriate slings, I find that the Secretary cannot prove a violation of the cited 

standard based on the facts in the record. In addition to discussing the risk of accidental use, the 

Secretary states that there is evidence that the damaged slings had actually been used in violation 

of the regulation. In support of this contention, the Secretary states that 

“Respondent is a crane company that uses slings to lift heavy 

objects. At the time of the inspection the lifting involved the 

rebuilding of haul trucks and other equipment. The worn slings at 

issue in this case were found in a box with undamaged slings in the 

toolbox on a flatbed truck. The slings were damaged from use. 

They did not become damaged sitting in the toolbox.” 

Secy. Response Ord. Show Cause 4 n.3 

 The Secretary expects me to infer, based on the fact that that the damaged slings had 

been found in a toolbox in one of Marco Crane’s flatbed trucks, that the slings had been used to 

hoist materials. This is not an unreasonable inference, but it is only the first step in a longer chain 

of inferences that I would have to make in order to conclude that a violation occurred. In addition 

 3

 I note that because there is a factual dispute over whether the slings had been tagged out 

or otherwise taken out of service, a citation under this standard would survive a motion for 

summary judgment based on the pleadings. 

36 FMSHRC Page 1613
to concluding that they had been used to hoist materials, I would have to conclude either that the 

damage was caused by inappropriate use instead of normal wear and tear, or that the slings had 

been used in their damaged state. In this case, however, the sling was found in a storage 

compartment in a truck that both parties admit was incapable of hoisting anything at all on the 

day of the inspection. The Secretary has presented no additional evidence with regard to what 

materials the slings had been used to hoist, which makes it unreasonable for me to reach either 

one of those conclusions. Moreover, there is no evidence whatsoever that the slings would 

actually be used in the future. 

 

The regulations promulgated under the Mine Act are intended to protect the safety and 

health of miners, and as a Commission judge I have a duty to do the same. I also have a duty to 

interpret and apply these regulations fairly and correctly, and to hold the Secretary to his burden 

of proof. It would be inappropriate to stretch and twist the plain meaning of a regulatory 

provision so that the Secretary can prove a citation that was issued under the wrong standard, but 

that is what the Secretary is asking me to do. This request is especially problematic in light of the 

availability of a much more appropriate provision and the explicit opportunity I provided to 

amend the citation. 

Reading the undisputed facts in the light most favorable to the non-moving party, I find 

that a reasonable finder of fact could not determine that the Secretary has proved a violation of 

30 C.F.R. § 56.16007(b). Wherefore, the operator’s motion for summary decision is 

GRANTED. 

ORDER

 Wherefore, it is ORDERED that Citation No. 6585510 is VACATED and Docket No. 

WEST 2012-894-M is DISMISSED. 

 /s/ L. Zane Gill 

 L. Zane Gill 

 Administrative Law Judge 

Distribution: 

 

Cheryl L. Adams, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite 

3-700, San Francisco, CA 94103 

Jana Leslie, Conference and Litigation Representative, U.S. Department of Labor, MSHA, P.O. 

Box 25367 M/NM, Denver, CO 80225-0367 

Holly P. Davies, Esq., Lorber Greenfield & Polito LLP, 950 W. Elliot Rd. Suite 110, Tempe, 

AZ 85284 

/ms 

36 FMSHRC Page 1614
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th St. Suite 443 

Denver, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

June 10, 2014 

DECISION

Appearances: Sophia Haynes, Office of the Solicitor, U.S. Department of Labor 

61 Forsyth Street, SW, Atlanta, GA 30303 

Warren Lightfoot, Maynard Cooper & Gale, PC, 

 1901 Sixth Avenue, 2400 Regions Harbert Plaza 

Birmingham, AL 35203 

 Josh Bennett, Maynard Cooper & Gale, PC, 

 1901 Sixth Avenue, 2400 Regions Harbert Plaza 

Birmingham, AL 35203 

Before: Judge Simonton 

 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 Tuscaloosa 

Resources, Inc. at the HWY 49 No. 1 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”). This case 

includes one 104(d)1 citation and one 104(d)1 order issued on November 11, 2011 for a total 

combined penalty of $140,000.00. The parties presented testimony and documentary evidence at 

the hearing held in Birmingham, Alabama beginning January 15, 2014. 

I. CASE SUMMARY 

 

 Tuscaloosa Resources, Inc. (Respondent) operated the surface coal HWY 59 No 1. mine 

(“HWY 59 Mine”) from August 2009 through November 2011. Tr. 603. In order to remove the 

economically valuable layers of coal present in this area, Respondent had to first remove a layer 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

TUSCALOOSA RESOURCES 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2012-490 

A.C. No. 01-03390-288534 

Mine: Highway 59 Mine No. 1 

36 FMSHRC Page 1615
of sandy topsoil 60 feet deep and then a 40 foot deep layer of shale rock before the first coal 

seam was exposed. Resp. Br., 5-6; Tr. 70, 606. Per MSHA regulations, Respondent submitted a 

ground control plan prior to beginning operations which was acknowledged by MSHA. Tr. 258. 

This plan stated that during the development of highwalls, hazardous conditions, including 

movement of the highwall, would be eliminated or workers would be removed from that area. 

Sec’y Ex. 9, 7 section (g) (6); Tr. 681, 685. The plan did not indicate that berms would be used 

to control or eliminate movement in highwalls. Tr. 263, 692. 

 In January 2011, a 103(g) complaint was filed with MSHA, claiming that a large section 

of a highwall had collapsed and had not been cleaned up. Tr. 78, 81. MSHA Inspector James 

Brodeur investigated this complaint and confirmed that a large slide had occurred in the 

Northwest area of the mine in a location with water saturated soil but confirmed that no injuries 

had occurred. Tr. 82. During the investigation of the complaint, Respondent’s management 

informed Brodeur that they were moving away from this area to mine in another direction. Tr. 

90. Inspector Brodeur did not issue any citations or orders during the January 2011 event. Tr. 

89. On May 10, 2011, MSHA Inspector Jarvis Westerly examined the HWY 59 mine as part of 

a regular inspection and did not find any highwall violations. Tr. 350-51. 

 On October 5, 2011 a massive highwall failure occurred at the active face of the HWY 59 

Mine. Tr. 381. A 230 foot wide section of the highwall slid out from the toe, overtopping a 

protective berm and sweeping a haul truck and driver over the adjacent bench lip. Tr. 98-99. 

The haul truck driver, Mr. Willis Jones, was severely injured, suffering a broken sternum, 

internal bleeding, concussion, and bruised heart. Tr. 98 

 Respondent immediately reported the incident and MSHA Inspector Brodeur investigated 

the accident that day. Tr. 93. Upon arriving at the scene, Inspector Brodeur noted that this slide 

had occurred in the West end of the pit in the same general proximity as the January slide. Tr. 

97. Inspector Brodeur took photos of the accident scene and interviewed witnesses, including 

the excavator operator who was closest to the highwall at the time of the slide. Tr. 97, Sec’y Ex. 

5, 15-16. 

 After concluding his investigation, Inspector Brodeur issued one 104(d)1 Citation and a 

separate 104(d)1 Order on November 11, 2011. For Citation No. 8521047, Brodeur alleged that 

Respondent had violated 30 CFR 77.1004(b) and failed to follow its Ground Control Plan by not 

implementing adequate controls or properly barricading the area in which the failure occurred. 

Sec’y Ex. 5. For Order No. 8521048, Brodeur alleged that Respondent had violated 30 CFR 

77.1713(a) in failing to identify overhanging material, loose rocks, water seepage, and overfilled 

catch benches at the highwall during required daily inspections. Sec’y Ex. 6. Inspector Brodeur 

alleged that both violations were the result of the Respondent’s high negligence and constituted 

an unwarrantable failure to comply with the Mine Act. Sec’y Ex. 5; Sec’y Ex. 6. 

 The Secretary issued proposed penalty assessments for these alleged violations on May 

17, 2012. Sec’y Proposed Assessment Exhibit A. Respondent timely contested both alleged 

violations and the parties engaged in lengthy discovery efforts. On May 2, 2013, I issued a 

prehearing order that required the parties to submit a prehearing report that detailed agreed upon 

stipulations and remaining issues of contention. May 2, 2013 Pre-Hearing Order, 2. The pre36 FMSHRC Page 1616
hearing order also notified the parties that absent exigent circumstances witnesses and exhibits 

not disclosed within their prehearing report would be excluded from the record. Id. Three days 

prior to hearing, after the parties had exchanged the required pre-hearing reports and participated 

in a pre-hearing teleconference, the Secretary submitted a Motion to Amend to Cite the Standard 

in the Alternative for Citation No. 8521047. Sec’y Motion to Amend, January 10, 2014. 

Respondent opposed the motion to amend, alleging bad faith on the part of the Secretary and 

stating that such a change would prejudice their ability to defend themselves. Resp. Motion in 

Opposition, January 14, 2014. I denied the Secretary’s motion, finding that the motion was not 

timely filed, the discovery process had not provided Respondent notice of an alleged failure to 

adhere to the “prudent engineering standard” governed by the alternative 30 CFR 77.1000 

standard, and that the motion was not necessary as the alleged facts of the citation corresponded 

directly with the originally cited 30 CFR 77.1004(b) standard. Order Denying Motion to Amend, 

January 14, 2014. 

 I presided over a three day hearing in this matter on January 15, 16, and 17 in 

Birmingham, Alabama. The Secretary presented testimony from Respondent employee Michael 

Howell, MSHA Inspectors James Brodeur and Jarvis Westerly, and Regional MSHA Supervisor 

Steven Womack. Respondent presented testimony of employees Ricky Williams, Stephen 

Smith, Judson Jones, Jan Kizziah, Michael Howell and Charlie Bridges. At the conclusion of the 

hearing, the Secretary renewed her motion to cite Citation No. 8521047 in the alternative, which 

the Respondent again opposed. Tr. 778. I again denied the Secretary’s Motion but informed the 

parties that I would evaluate whether or not Respondent complied with its written ground control 

plan as part of my determination of whether it violated 30 CFR 77.1004(b). Tr. 789-791. 

The parties submitted post-hearing briefs as requested by the Court. In summary, the 

Secretary argued the Citation and Order should be upheld as Respondent negligently relied upon 

a rock berm to contain obviously wet and unstable material that regularly slid out from the toe. 

Sec’y Br. 11, 23. Respondent argued that the Citation and Order should be vacated, claiming 

that the October 5, 2011 slide was unforeseeable, that MSHA had observed its mining and 

ground control methods during previous inspections without objection, and that no standard 

regulated or notified Respondent of the dangers of saturated ground conditions. Resp. Br., 25, 

29, 35. The Secretary, responding to the claim that MSHA did not have regulations pertaining to 

saturated ground conditions, filed a reply brief supported by MSHA bulletins outlining best 

management practices for stockpiles not produced or referenced at hearing. Sec’y Reply Br., 2-

3. The Respondent filed a motion in opposition, stating that these exhibits violated my prehearing order requiring disclosure of exhibits pre-hearing and were irrelevant as they applied to 

stockpiles and not developing highwalls. Resp. Obj. to Reply Br., 3-4. Respondent also 

submitted their own Reply brief for consideration. Resp. Reply Br. 

In response to the parties arguments, I have prepared a Statement of Law outlining the 

Commission’s instructions regarding: 1) Statute Interpretation; 2) Burden of Proof; 3) Significant 

and Substantial violations; 4) Unwarrantable Failure; and 5) Civil Penalty and Special 

Assessment. After detailing these guidelines, I have set forth my case findings as follows: A) 

HWY 59 Mine Ground Conditions and Control Plan; B) January Slide, C) October Slide D) 

Analysis. Due to the volume of testimony, I have not included a separate summary of testimony, 

but have considered all testimony and evidence presented and referenced the testimony and 

36 FMSHRC Page 1617
arguments critical to my ultimate rulings. As they were not necessary for my ultimate findings, I 

did not consider the alternative standard or government exhibits submitted after hearing in 

reaching this decision. 

After considering the testimony and evidence presented, I AFFIRM Citation No. 

8521047 and Order No. 8521048 as originally written. Upon reviewing the six penalty criteria 

and evidence presented regarding the specially assessed penalty amounts, I find that $50,000.00 

is an appropriate penalty for each of the violations for a total combined penalty amount of 

$100,000.00. 

II. STATEMENT OF LAW 

A. Statute Interpretation 

The Commission has stated that: 

The operator is entitled to the due process protection available in 

the enforcement of regulations... When a violation of a regulation 

subjects private parties to criminal or civil sanctions, a regulation 

cannot be construed to mean what an agency intended but did not 

adequately express. Laws must give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, 

so that he may act accordingly

Energy West Mining Co., 17 FMSHRC 1317-18 (internal citations omitted). 

 However, the Secretary is not required to provide the operator actual notice of its 

interpretation of a mandatory safety standard, rather, 

The Commission has applied an objective standard of notice, i.e., 

the reasonably prudent person test. The Commission has 

summarized this test as ‘whether a reasonably prudent person 

familiar with the mining industry and the protective purposes of 

the standard would have recognized the specific prohibition or 

requirement of the standard.’ 

Energy West Mining Co., 17 FMSHRC 1318 (internal citations omitted). 

B. Burden of Proof 

 The Commission has long held, “In an enforcement action before the Commission, the 

Secretary bears the burden of proving any alleged violation.” Jim Walter Resources, Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (August 1992). 

36 FMSHRC Page 1618
The Commission has described the Secretary’s burden as: 

“The burden of showing something by a “‘preponderance of the 

evidence,’ the most common standard in the civil law, simply 

requires the trier of fact ‘to believe that the existence of a fact is 

more probable than its nonexistence.’” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

 The Secretary may establish a violation by inference in certain situations. Garden Creek 

Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently 

reasonable, and there must be a rational connection between the evidentiary facts and the 

ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984).

If the Secretary has established facts supporting the citation, the burden shifts to the 

respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321, 

327 (March 2001) (ALJ Feldman). 

C. Significant and Substantial 

A violation is Significant & Substantial (S&S), “if based upon the particular facts 

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

result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that 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). 

 An S&S designation must be based upon the particular facts surrounding the violation 

and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 

FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). However, the Secretary “need not prove a reasonable likelihood that the violation itself 

will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) 

(holding that failure to maintain emergency equipment was S&S despite low likelihood of 

emergency occurring); See also Musser Engineering, Inc. and PBS Coals, 32 FMSHRC 1257, 

1280-81 (Oct. 2010) (PBS). 

The Commission has mandated that ALJs perform a full analysis of all four Mathies

factors based on specific evidence, including the likelihood of an injury producing event 

occurring. Wolf Run Mining Co., 32 FMSHRC 1669, 1678 (Dec. 2010). The Commission has 

also maintained that an S&S determination must be based on more than a showing that a 

36 FMSHRC Page 1619
violation ‘could’ result in an injury. Wolf Run Mining Co., 32 FMSHRC 1678 (quoting Peabody 

Coal Co., 17 FMSHRC 26, 29 (Jan. 1995)). 

 

D. Unwarrantable Failure 

Section 104(d) (1) of the Mine Act states: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation 

of any mandatory health standard,... and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall 

include such findings in any citation given to the operator under 

this Act. 

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,” “willful intent”, “indifference,” or the 

“serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 193-94. (February 1991). 

The Commission considers the following factors when determining the validity of 

104(d)1 and 104(d) 2 orders: (1) the length of time that the violation has existed and the extent of 

the violative condition,(2) whether the operator has been placed on notice that greater efforts 

were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4) 

whether the violation was obvious or posed a high degree of danger and (5) the operator’s 

knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000). 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. IO 

Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). 

E. Penalty Assessment 

 It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (March 1983). 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. 

36 FMSHRC Page 1620
30 U.S.C. 820(I). 

These criteria are generally incorporated by the Secretary within a standardized penalty 

calculation that results in a pre-determined penalty amount based on assigned penalty points. 30 

CFR 100.3: Table 1- Table XIV. When specific aggravating factors outside of the normal 

gravity and negligence determinations are present, the Secretary may instead rely upon 30 CFR 

100.5 and propose specially assessed penalties. In either assessment method, the Secretary may 

only propose penalties up to $70,000.00 per citation for violations considered under Section 

110(a) (1) of the Mine Act. The Secretary may only propose penalties above $70,000.00 per 

citation when there is evidence that the violation was a flagrant violation per the definition of 

Section 110(b) (2) of the Mine Act. 

For all penalty assessments, the Secretary bears the burden of establishing the proposed 

penalty is appropriate based upon the statutory criteria of Section 110(i) of the Act. In re: 

Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241 (ALJ Broderick) 

(January 1992) (Order). Similarly, for specially assessed penalties in excess of the standard 

penalty calculation, the Secretary has the burden of establishing the existence of aggravating 

factors to justify such an increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ 

Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181 (ALJ Miller) 

(January 2013). 

III. FINDINGS AND ANALYSIS

A. Hwy 59 Mine Ground Conditions 

The Hwy 59 Mine was comprised of several distinct levels of material. The top 60 feet 

of the mine was comprised of unconsolidated layering of red clay, sand, and pea gravel. Tr. 344-

45, 465-66, 606. Below this overburden layer was a harder 40 feet level of shale rock. Tr. 70, 

606. The shale rock was impermeable to water and groundwater collected on top of the shale 

rock at the bottom pea gravel layer of the overburden. Tr. 465-66, 614. This groundwater was 

routinely diverted by a berm system to the pit below where sump pumps pumped the water out of 

the mine continuously. Tr. 614-15. The bench at the top of the shale rock level was referred to 

as the Brookwood bench. Below the shale rock were alternating seams of coal and sandstone. 

Sec’y Ex. 9, 9. The bench at the bottom of the shale rock level and the top of the first coal seam 

was referred to as the Milldale bench. Respondent tested the overburden to determine if it had 

commercial value, and the test results indicated that the material was not cohesive enough to act 

as a binder in concrete or asphalt products. Tr. 655-66. Within the mine, the West side of the 

overburden layer was generally wetter than the east side. Tr. 692. 

Before beginning operations, Respondent submitted a ground control plan to MSHA 

per MSHA regulations. Tr. 331. MSHA acknowledged the plan without reservations. The 

ground control plan stated in relevant part, 

When failure to control the developing highwall occurs such as the 

existence of overhan(g)s, loose material, unconsolidated rocks, 

36 FMSHRC Page 1621
materials falling into the pit, movement in the wall, or blasting 

practices fail to result in a clean and stable highwall, and corrective 

action cannot be taken to eliminate the existence of these 

conditions, the affected area will be barricaded to prevent persons 

from being exposed to the conditions and the plan will be revised 

to safely control the highwall and provide for safe conditions. 

Sec’y Ex., 9, 7 (g) 6. 

The ground control plan did not list berms as a proposed method of controlling or 

eliminating movement in the highwall. Tr. 692, 263. 

Respondent used an excavator and haul trucks to remove the unconsolidated overburden 

from the active pit. Each “cut” through the overburden created a bench approximately 150 feet 

wide. Tr. 614. Respondent built up a working berm at the toe of the 60 foot tall overburden 

highwall as mining progressed. Tr. 397. This berm was used to divert groundwater, keep the 

working bench clean, protect equipment, and allow trucks to operate without become stuck in 

soggy conditions. Tr. 611, 736. The toe/working berm was positioned approximately 10-20 feet 

from the toe of the overburden and ranged from 8-12 feet high.1Tr. 398, 677. An excavator 

was positioned on the far bench side of the toe berm while it dug material from the highwall 

side. Tr. 397. The excavator had a reach of approximately 25 feet and both directly tore down 

material from the overburden highwall or relied upon material sliding to the working berm on its 

own as it dug at the berm. Tr. 669-70, 677. 

B. January 2011 Slide 

On January 19, 2011 a large slide occurred at an 80 foot wide section of the highwall at 

the West side of the mine. Tr. 81. MSHA received a hazard complaint alleging that a large slide 

had occurred and had not been cleaned up. Id. Inspector Brodeur traveled to the mine and 

investigated the site and interviewed eyewitnesses to the slide. Tr. 82. Inspector Brodeur 

testified that eyewitnesses informed him that the slide occurred in an area where an excavator 

was reaching over a berm to excavate soupy saturated material at the toe of the overburden. 

1

 Inspector Brodeur alleged within Citation No. 8521047 and testified that he believed the 

toe berm was 100 feet away from the toe of the overburden highwall. Tr. 283; Sec’y Ex 5, 1. 

After reviewing the testimony of all witnesses and the exhibits entered, I find that the working 

toe berm was located within 10-20 feet of the toe of the highwall. Tr. 398, 677, 738 . Given that 

each cut was approximately 150 feet wide, a 100 foot working berm configuration would not 

have allowed the excavator and trucks to operate in the manner credibly described by Truck 

Driver Ricky Williams. Tr. 370, 614. This finding regarding the location of the toe berm does not 

affect my ultimate finding that the toe of the overburden highwall was significantly saturated 

prior to the October slide. 

36 FMSHRC Page 1622
Tr. 83. This testimony is corroborated by Bordeur’s January 20, 2011 inspection notes which 

recorded that prior to the slide: 

The highwall above the Brookwood bench consisted of dirt, clay, 

sand, small rock and gravel and was wet from snow and rain 

weather. The highwall was sloped back and Gauley stated that as 

he would dig, the highwall material would slide toward the 

excavator. An approximate 4.5 foot high berm, constructed of 

rock, was built at the base of the highwall with the excavator on 

the bench side reaching over to dig on the highwall. 

Sec’y Ex. 4, 10. 

 Brodeur also testified that the highwall collapsed in the area being excavated and 

breached the toe berm and flowed across the shale rock bench and then down onto a lower bench 

where it pushed a backhoe 75 feet. Tr. 83-84. Brodeur’s testimony on the specifics of the slide 

are corroborated by his January 20, 2011 inspection notes which record that eyewitnesses stated: 

The top approx. 40 feet of the approx. 60 foot highwall slid out at 

the bottom of the 40 foot, traveled approx. 120 feet across the 

Brookwood bench and over the highwall down to the Milldale 

bench... The material pushed the backhoe approx. 75 feet along 

the Milldale bench.... The material got up under the hoe and slid 

it. The hoe operator stated he unbuckled his seatbelt, got off the 

hoe and ran when he saw the material coming. All witnesses 

stated the material slid and flowed like slow moving water... The 

area of the wall that slid out was 40 feet in height, 80 feet in width 

and 30 feet in thickness... 

Sec’y Ex. 4, 10-12. 

 Brodeur inspected the on-shift examination book, noted an entry recording that a “wall 

slid on Milldale pit” and mistakenly concluded that Respondent had identified the conditions of 

the highwall as a hazard prior to the major slide. Tr. 88. In fact, Respondent had only completed 

this entry after the January 19 slide had occurred. Tr. 177. Respondent’s Superintendent Charlie 

Bridges informed Brodeur Respondent was not going to mine in that area anymore and that they 

were going to mine in a different direction. Tr. 90-91. Based on his previous observations of 

HWY 59 mining conditions and relying upon his understanding that Respondent would cease 

mining in that area, Inspector Brodeur decided not to issue any violations. Tr. 89-90. 

 The Respondent has emphasized that they were not actively excavating in the location of 

the January slide at the time it occurred. Resp. Br., 13; Tr. 400. Upon questioning by the Court, 

Superintendent Bridges stated that crews were digging from the toe approximately 150 feet away 

from the main point of the January slide, but also stated that the area had already been excavated 

36 FMSHRC Page 1623
and that a pump had been set at this location prior to the slide.2

 Tr. 761. The Respondent has 

also argued that the January slide was primarily caused by the presence of an old settling pond at 

this location and was made up of different material than the normal highwall. Resp. Br. 14, Tr. 

630-31. However, Respondent did not produce any witnesses who personally observed the 

January slide as it occurred. Tr. 377, 403, 423, 739. As noted above, Inspector Brodeur testified 

that eyewitnesses to the January slide stated to him that the slide was made up of the saturated 

material of the highwall. Tr. 83. Indeed, Inspector Brodeur’s January 20 investigation notes 

indicate that the excavator operator digging the highwall, Alan Gauley, observed the slide and 

that the “berm on the Brookwood bench was constructed out of the same material as the highwall 

that slid down.” Sec’y Ex. 4, 10-11. 

As such, I find that the January slide occurred in an excavated area with saturated soil 

conditions, and that the slide consisted of the normal mixture of clay, sand, and gravel present at 

the highwall in this area. I also find that although the settling pond present at the top of the 

highwall in this location may have added to the saturation and instability of the wall, it is also 

apparent that the extensive wetness of the highwall below was a significant contributory factor of 

this slide. In making this determination, I note that the highwall slid out from a point 40 feet 

below the top of the highwall and moved like “slow moving water” in a manner similar, if much 

more voluminous, than the routine sliding considered part of the excavation cycle. Sec’y Ex. 4, 

11-12. 

C. October 2011 Slide 

On October 4, 2011, Respondent employee Michael Howell inspected the active face of 

the highwall recording that that the highwall was “ok” at his last inspection time of 11:37 PM. 

Tr. 721-23; Sec’y Ex. 7, 10. This active face was approximately 500 feet to the Northwest of the 

location of the January slide. Tr. 97, 707-08, Resp. Ex F. Howell later stated at hearing that he 

did not observe any unusually excessive water saturation or other unsafe ground conditions prior 

to the fall. Tr. 722-23. However, Howell confirmed that a soupy mixture of sand and water 

regularly ran from the toe of the highwall at this area. Tr. 62. Howell also confirmed that the toe 

of the highwall would slide out from the bottom of the highwall as it was excavated. Id. A toe 

berm approximately 10-12 feet high was used to contain the toe of the highwall in this area and 

divert water to the pit below. Tr. 611-12. The next morning, Steve Smith performed the preshift examination for the day shift, noting that everything was “ok” at 3:38 am. Tr. 452-53; 

Sec’y Ex. 7, 9. The shift began production with Excavator Operator Gary White digging from 

 2

 Although the record is not entirely clear, it appears that there was already one 

dewatering pump in place at the top of the shale rock bench prior to the slide and that a separate 

pump was being installed on the bench below at the time of the January 19 slide. Tr. 84, 761. 

36 FMSHRC Page 1624
behind the toe berm and loading haul trucks with the overburden. Tr. 98, 370; Sec’y Ex. 5, 15-

16. Mr. White later informed Inspector Brodeur that the soupy material that ran out from the toe 

ranged up to 6 feet high on the highwall side of the berm.3

 Tr. 107; Sec’y Ex. 5, 16. Respondent 

Foremen Howell and Smith disputed this six foot figure at hearing. Tr. 449, 723. Truck Driver 

Ricky Williams stated he was unable to directly observe the soupy material from his haul truck 

on the opposite side of the berm. Tr. 387. 

At 7:30 am, a 230 foot wide section of the highwall failed directly above the active 

excavation. Tr. 108-09. During excavation, the face of the highwall slid out rapidly from the 

bottom, overtopping the toe berm and sliding the excavator backwards. Tr.98; Sec’y Ex. 5, 15. 

This first wave of material also pushed the haul truck driven by Mr. Willis Jones to the top lip of 

the Brookwood bench. Tr. 98, 713. After a brief interval of several seconds, a second wave of 

material slid out from the toe of the highwall, again breaching the berm. Tr. 98, 101-02. This 

second wave struck the haul truck as Jones attempted to jump clear, sweeping both the truck and 

Jones over the bench onto the Milldale pit below. Tr. 98-99; Sec’y Ex. 5, 15-16. 

Respondent employees spotted Jones’ fingertips sticking out from the slide and freed him 

quickly from the slide. Tr. 99-100. Emergency services arrived at the scene and transported Mr. 

Jones by helicopter to a nearby hospital, treating him for a bruised heart, concussion, bulging 

disc and internal bleeding. Tr. 100, 120. 

D. Citation No. 8521047 

1. Motion to Amend to Cite in the Alternative 

 The Secretary renewed her Motion to Amend Citation No. 8521047 to cite 30 CFR 

77.1000 at the beginning of the hearing, at the end of the hearing, and again within her post 

hearing brief. Tr. 9, 778; Sec’y Br., 33. However, the Secretary essentially restated the positions 

originally articulated in his original motion to amend and did not offer significant additional 

arguments. As such, I again deny the Motion to Amend to cite the standard in the alternative for 

the reasons stated in my January 15th Order concerning this issue. 

 To reiterate the position I stated at the conclusion of the hearing, I did analyze the 

effectiveness of the toe berm in controlling the hazard of sliding saturated material, and 

considered testimony regarding Section (g)(6) of the Respondent’s Ground Control plan as 

 3

 Mr. White passed away prior to the hearing due to causes apparently unrelated to this 

matter and was not deposed during the discovery process. However, Inspector Brodeur’s 

investigation notes confirm that Mr. White stated he was digging a soupy mixture of water, sand, 

and clay up to 6 feet deep from the highwall side of the toe berm prior to the accident. Gov. Ex. 

5, 15-16. Additionally, although Respondent’s employees have disputed that the soupy material 

was up to 6 feet deep on the highwall side of the mine there is no substantive dispute that there 

was a notable amount of soupy sand/water mixture present at the toe of the highwall. Tr. 62. As 

such, while Inspector Brodeur’s testimony recounting Mr. White’s statements are not critical to 

my ultimate findings, I found that they were a credible and corroborated account of the October 

5 slide. 

36 FMSHRC Page 1625
evidence that the described conditions were indeed a hazard. Tr. 790-91. However, I did not 

consider testimony or arguments regarding the operator’s general mining plan or alternate 

mining methods referenced at hearing. Tr. 494,768; Sec’y Br. 14-15. 

2. The Violation

Inspector Brodeur alleged in part within Citation No. 8521047 that: 

The Mine Operator failed to follow the Ground Control Plan for 

this mine by implementing adequate controls to prevent a highwall 

failure or poorly barricading the highwall to prevent persons from 

being exposed to ground failure hazards. 

Sec’y Ex. 5. 

Brodeur determined that an injury had occurred, the injury was permanently disabling, 

affected one person, the violation was S&S and the result of the operator’s unwarrantable failure 

to comply with the Mine Act. Sec’y Ex. 5. The Secretary proposed a specially assessed penalty 

of $70,000.00 for violating 30 CFR § 77.1004(b). Sec’y Proposed Assessment, Exhibit A. 

30 CFR § 77.1004(b) mandates: 

Overhanging highwalls and banks shall be taken down and other 

unsafe ground conditions shall be corrected promptly, or the area 

shall be posted.

Thus, the Mine Act requires mine operators to correct or barricade all “unsafe ground 

conditions” that a reasonably prudent miner would identify. Energy West Mining Co., 17 

FMSHRC 1318. 

The Secretary contends that the wet material that regularly slid out from the toe was an 

unsafe ground condition the Respondent should have eliminated and or barricaded. Tr. 91-92; 

Sec’y Br. 13. The Secretary also argues that the toe berm was not a sufficient control method as 

it only kept material that had already slid out from the toe from spreading further out onto the 

bench. Tr. 676-77; Sec’y Br. 13. The Respondent rejects this contention on three points, 

arguing that 1) the water seepage present at the HWY 59 highwall was normal and did not 

present a hazard; 2) MSHA regulations do not regulate soil saturation, and; 3) the 10 foot berm 

was properly constructed and functioned adequately under foreseeable circumstances. Resp. Br. 

5, 25, 27. 

After reviewing the testimony, entered exhibits, and relevant Commission case law, I find 

that a reasonably prudent miner would have identified the wet sliding material as a hazard 

requiring elimination or evacuation. I also find the Respondent’s rebuttal arguments on this 

matter unavailing and lacking credibility. 

36 FMSHRC Page 1626
a. Significant Water Seepage was Present at the Highwall Prior to the 

 October Slide 

Respondent’s Vice President of Operations Jan Kizziah’s testified that the October slide 

consisted primarily of “wet and sloppy” material. Tr. 713. Indeed, the accident investigation 

photos show a layer of dark grey sludge fanning out across several hundred feet of the lower pit 

floor. Sec’y Ex. 5, 33. The material is obviously very saturated and wet as equipment used after 

the slide in abatement efforts left deep tire tracks. Id. However, Respondent’s foremen Smith 

and Howell testified that prior to the slide that water seepage at the highwall was “normal” and 

that this substantial volume of wet material was not detectable. Tr. 453, 719-22. After 

reviewing the testimony and description of ground conditions at this area, I find that the 

Secretary has established that the toe of the slope was obviously saturated prior to the slide and 

the Respondent’s argument that this condition was undetectable lacks credibility and are 

contradicted by their own statements. 

Respondent Foreman Michael Howell conceded that prior to the October Slide, it was 

normal for a sand and water mixture to run from underneath the highwall. Tr. 62. Howell also 

stated that that the toe berm was used to contain the “soupy material” as the excavator scooped 

out this mixture. Id. Howell did not consider the regular sliding of the toe material a hazard 

since the berm normally contained those slides. Tr. 64. However, Foreman Smith stated that in 

addition to the January and October slides, there were times when the excavator splashed enough 

water onto the haul side of the bench that clean-up efforts were necessary. Tr. 436-37. Given 

the 10 foot height of the toe berm, this account supports Inspector Brodeur’s testimony that after 

the accident, excavator operator Gary White stated that he had been digging up to six feet of 

soupy material from the highwall side of the toe berm prior to the accident. Tr. 222, Sec’y Ex. 5, 

15-16. 

Additionally, although Superintendent Bridges described water seepage at this area as 

normal and safe, he also stated that the toe berm was necessary to divert water away from the 

haul path as “You had to keep it clean to be able to work. The trucks would not go on wet or 

soggy material.” Tr. 736. 

Similarly, Vice President Kizziah indicated that the bottom layer of the overburden was 

inherently wet as water was “gonna wind up at the interference of the shale and sand and gravel 

because it can’t go any further.” Tr. 614. 

The photos of highwall areas immediately adjacent to the October slide show obvious 

areas where groundwater was seeping from the toe of the overburden highwall. Tr. 109; Sec’y 

Ex. 5, 33. Kizziah and Bridges both testified that it was normal for overburden in this region of 

Alabama to be moist. Tr. 608, 730. However, Kizziah conceded that the West part of the HWY 

59 mine where the January and October slides occurred was wetter than the East part. Tr. 692. 

Additionally, the presence of large water stains on the adjacent highwalls indicates that 

groundwater was flowing under pressure in this area and that the soil in this area contained more 

water than it could hold. Sec’y Ex. 5, 33. 

 

36 FMSHRC Page 1627
Thus, based on the testimony and exhibits presented, I find that prior to the October 

slide, there were obvious visual signs of extensive water accumulations at the active 

highwall, particularly at the toe of the slope. 

b. Wet Saturated Material is an Unsafe Ground Condition at a Highwall

The Respondent is correct that 30 CFR § 77.1004(b) does not literally specify wetness or 

saturation as an unsafe ground condition. Tr. 208. However, water saturation and erosion due to 

water seepage are well-known ground control parameters. MSHA’s Regional Supervisor stated 

that the water saturated condition of the unconsolidated material he observed at the HWY 59 

mine increased the likelihood of highwall failure. TR. 477, 489-90. The Respondent has 

objected to Mr. Womack’s testimony regarding mining methods and ground conditions as 

Womack did not inspect the mine prior to the accident or personally observe Respondent’s 

mining methods. Still, Womack inspected the HWY 59 mine on October 11, observing the 

muddy conditions of the slide itself and the soil composition and water seepage present at the 

adjacent highwall. As such, I find that given his first hand observations of the HWY 59 mine 

and his experience and training as an inspector, his testimony regarding the probable effect of 

water upon unconsolidated material is relevant and admissible in these proceedings. 

Similarly, Inspector Brodeur testified that some minor movement of highwalls was 

acceptable but that the sliding of saturated material at the toe of the slope was inherently 

dangerous and required evacuation. Tr. 135, 211-12. Brodeur also testified that at other mines 

where water came out from the highwalls, operators installed pumps to remove the water. Tr. 

131-32. I find this testimony consistent and supported by his statements made during deposition 

that while minor sloughage of a highwall could occur in dry sandy conditions, when the material 

at the toe of the slope was wet and saturated, the weight of the highwall material above could 

cause the toe to slide out from the bottom due to pressure. Resp. Ex. 4, 178. 

More importantly, the January slide provided Respondent specific notice that saturated 

soil presented a significant hazard as the slide overtopped the toe berm and nearly overturned a 

backhoe on the bench below. Tr. 83-84. Respondent argues that the January slide differed from 

the October slide as they claimed the January slide involved sliding material from a settling pond 

near the top of the highwall. Resp. Br. 14: Tr. 630-31. I have already found that the January 

slide involved a slide from near the midpoint of a rain soaked highwall and that the settling pond 

was only a partial factor of the January slide. However, regardless of the point at which that 

slide began or the source of water saturation, the fact that the January slide overtopped the toe 

berm put Respondent on notice that wet saturated material was prone to failure and that toe 

berms were inadequate in containing significant slides. 

Furthermore, the dangers of wet saturated material at a highwall are not a novel concept 

to the Commission. In a remarkably similar case, an excavator operator was fatally injured when 

an overburden highwall collapsed due to the destabilizing effects of wet and muddy ground 

conditions. Featherlite Building, 12 FMSHRC 2580, 2583 (ALJ Cetti) (December 1990). The 

ALJ, after considering expert testimony on the effect of saturated ground conditions, found the 

36 FMSHRC Page 1628
wet condition of the highwall was an obvious hazard that the operator had failed to correct prior 

to the collapse.4

 Id. at 2591. 

 Although the Respondent repeatedly tried to downplay the danger of saturated material 

sliding off the highwall by describing it as minor and controllable sloughage, TRI Superintendent 

Charlie Bridges acknowledged in regards to sliding material that, 

“Oh, it’s always a hazard, if it’s coming off the wall, it’s a hazard, 

I mean, you know, that’s the reason we had the berm.” 

Tr. 758. 

 

Additionally, Vice-President Kizziah stated explicitly that without the toe berm, the wet 

sandy material present at the toe was a hazard and, “could slough out and it’s gonna run out all 

your bench... (and) ... damage equipment.” Tr. 622. Kizziah also stated that at a previous mine 

in the area he had previously witnessed wet material “(take) out pickup trucks.” Tr. 622. 

Kizziah also stated that a prior excavation method using dozers to push overburden down from 

above had failed because: 

“Now we have that sand down in the pit with us and all the water 

we’ve got down there. We were having a problem stabilizing low 

walls.” 

Tr. 608. 

 

 In summary, Inspector Brodeur and Supervisor Womack credibly stated that water 

saturation decreased the stability of the highwall; a previous slide of wet saturated material had 

occurred in that area of the HWY 59 mine; Commission precedent has recognized saturated 

ground conditions as a highwall hazard; and Respondent’s management repeatedly 

acknowledged sliding or saturated wet material created highwall hazards. As such, I find that a 

reasonably prudent miner would have recognized the wet sliding material at the toe of the 

 4 Featherlite involved a surface metal/nonmetal mine and an alleged violation of 30 CFR 

§ 56.3200 which states that “Ground conditions that create a hazard to persons shall be taken 

down or supported before other work or travel is permitted in the affected area. Until corrective 

work is completed, the area shall be posted with a warning against entry and, when left 

unattended, a barrier shall be installed to impede unauthorized entry.” As such, this standard 

issues a substantially identical ground control mandate to surface metal non/metal operators as 

30 CFR 77.1004(b) does to surface coal operators applicable in the before case. 

36 FMSHRC Page 1629
highwall as an unsafe ground condition that required further control and or evacuation. 30 CFR 

§ 77.1004(b); Energy West Mining Co., 17 FMSHRC at 1318. 

c. The Toe Berm was an Inadequate Control for the Extensive Saturation 

 Hazard

The Secretary argues that the berms were not listed in the ground control pan and were an 

inadequate control since they only contained sliding material and did not prevent the sliding from 

occurring in the first place. Tr. 692; Sec’y Br. 13. The Secretary also argues from MSHA 

Supervisor Womack’s testimony that it was inherently unsafe for Respondent to rely upon the 

toe berm to stop sliding material and dig from the toe of the slope rather than scaling at an angle 

from the top. Tr. 472, 477; Sec’y Br. 13. 

Respondent’s witnesses testified that the berms were stoutly constructed, contained the 

highwall for over 99% of the highwall development, and that the January and October highwall 

failures were unforeseeable events beyond its reasonable control. Tr. 372, 673, 739, 749. The 

Respondent also contends that MSHA Supervisor Womack’s testimony regarding excavation 

techniques at the toe of the highwall is inadmissible because he never observed Respondent’s 

mine in operation. Resp. Br. 25, n. 7. Nevertheless, the Respondent contends that digging from 

the toe and allowing material to slough towards the excavator was a safe method given the use of 

the toe berm. Resp. Br. 27. 

After considering the testimony, exhibits and arguments of the parties, I find that the 

Secretary did demonstrate the toe berm was an inherently inadequate control method for the 

saturated sliding material at the toe of the slope. Respondent stated in its ground control plan 

that among other concerns, movement in the developing highwall will be eliminated and/or 

barricaded. It is obvious that the toe berm did not eliminate sliding of the highwall. Sec’y Ex. 9, 

7- (6). Instead, it kept the sliding toe from spreading out over the bench while the excavator 

reached over the berm and scooped out fill material. Tr. 732-33. Additionally, the positioning of 

the outer edge of the toe berm approximately 15 feet away from the toe of slope decreased the 

effective reach of the excavator. Resp. Br. 27; Tr. 398, 669-70, 677-78. As such, the toe berm 

decreased the ability of the excavator to scale the upper parts of the highwall and relieve pressure 

from the saturated material. 

 Respondent’s Operations Vice President of Kizziah claimed that the ground control 

provision did not apply to active faces of the highwall but was rather limited to highwall areas 

that had already been completely excavated. Tr. 683-85. This claim is directly contradicted by 

the section’s explicit coverage of “developing” highwalls and specific requirement for the 

“result” of a “clean and stable highwall.” 5

 Respondent alternately claims that sloughage is a 

 5

 Respondent’s Operations Vice President Kizziah testified emphatically that this 

provision only applied to established highwalls and did not apply to active faces. Tr. 688. The 

Respondent has quoted the language of this provision in supporting this argument. Resp. Br., 3-

4. However, after reviewing the Ground Control Plan as a whole, I find that the referenced 

“developing highwall” section applies to significant uncontrolled movement of active as well as 

established sections of the highwall. 

36 FMSHRC Page 1630
necessary element of excavation, and the regular sliding of material at the toe was not the sort of 

hazardous movement referenced by the ground control plan. Resp. Reply Br., 3-4. 

 However, the very need to construct a compacted 10 foot high rock berm indicates that 

the sliding toe placed substantial pressure against the berm as Respondent’s Superintendent 

Bridges testified in regards to the working/toe berm that: 

“You couldn’t just push it up and leave it loose, because if 

you did, I mean, it would, you know, have a tendency to 

maybe lose one...If we felt like it was a little weak... We’d 

have to send them and load rocks and bring back rock and 

bring it back in there and shore up the berm again to make 

sure that it was safe and everything.” 

Tr. 737-739. 

 The fact that the toe berm was consistently used at the HWY 59 mine and significant 

highwall failures only occurred along 1% of the total highwall is hardly an impressive safety 

record or proof of the toe berm’s adequacy. Tr. 371, 673. After the January slide, it was evident 

that that the existing 4 foot toe berm was incapable of controlling significant slides. Tr. 90. 

Additionally, given the approximate 60 foot height of the overburden highwall and the fact that 

the January slide produced so much material that it traveled to the level below and pushed a 

backhoe over 75 feet, it was obvious that increasing the height of the toe berm to 10 feet would 

do little in terms of preventing and or controlling a significant highwall failure. Tr. 706. 

Furthermore, the Respondent’s argument that the toe berm was adequate for foreseeable 

sloughage, but that the October slide overtopping the toe berm was unforeseeable is contradicted 

by the evidence presented. As I have just noted, the January slide made large slides of saturated 

material in this area a foreseeable possibility. Furthermore, during routine excavation following 

the January incident, the highwall apparently did exhibit instability and slid up to the highpoint 

of the berm on several occasions, prompting Respondent’s employees to temporarily withdraw 

from the area until the highwall stabilized. Tr. 375-76; 617. As such, it is clear that 

Respondent’s employees did not consider the 10 foot berm a fail-safe control of highwall 

conditions at this area. Additionally, both Inspector Brodeur and Inspector Westerly testified 

that during their investigation of the October 5 slide, Respondent’s employees stated that at least 

one other significant slide had occurred in addition to the January and October slides at the HWY 

59 mine. Tr. 187; Sec’y Ex. 5, 17-18. Tr. 365. 

After considering all the above evidence, I find that the toe berm was an inadequate 

control for the saturated conditions at the toe of the highwall. The toe berm failed to eliminate 

the saturated condition of the material, relieve pressure from the overburden above, or stop 

sliding from the toe of the wall from occurring. Additionally, given the dimensions of the 60 

foot highwall and the excavator’s limited reach, it was impossible to construct a workable berm 

high enough berm to contain a top to bottom failure of the highwall. Tr. 612, 677. 

36 FMSHRC Page 1631
In summary, I have found that ground conditions were significantly saturated at the toe of 

the highwall, this saturation was a hazard a prudent miner would have recognized, and that the 

toe berm relied upon to control this condition was inherently inadequate. As such, I affirm the 

underlying violation in Citation No. 8521047 and find that the Respondent violated 30 CFR § 

77.1004(b) in failing to eliminate or barricade an unsafe ground condition. 

3. Significant and Substantial 

 I have already found that Respondent violated a mandatory safety standard in failing 

to adequately control saturated ground conditions at the toe of the highwall. This violation 

contributed to the discrete safety hazard of the highwall sliding out from the toe and overtopping 

the toe berm. As an excavator and several haul trucks continuously operated on the bench side 

of the toe berm, a failure of the 60 foot highwall was reasonably likely to engulf, overturn, and 

sweep over equipment and personnel present on the bench. Tr. 370. Workers caught in such a 

mass of unconsolidated material were reasonably likely to suffer broken bones, blunt trauma, and 

asphyxiation ranging in severity from lost time to possibly fatal injuries. Tr. 120. As such, the 

evidence presented by the Secretary satisfies the four factor of the Mathies S&S test. 

 The Respondent contends in regards to the second Mathies element that even if there 

was a technical violation of 77.1004(b), the routine sloughage did not present a safety hazard 

because the berm contained routine sloughage. Resp. Br. 32. The Respondent also argues that 

the October and January slides contained different material than normal and thus, the 

characteristics of those slides should not be considered in the question of whether not the sliding 

material present at the toe wall presented a discrete safety hazard. Resp. Br. 32 n. 9, 10. 

Respondent’s witnesses did claim that the berm adequately contained routine sloughage. Tr. 

376, 444-45, 744-45. However, Respondent’s witnesses also testified that the sliding saturated 

material had the potential of spreading out and damaging equipment, exerted so much pressure 

on the toe berm that the berm had to be recompacted, slid excessively to the point that workers 

evacuated the bench as a pre-caution, and had severely damaged equipment at other mines in the 

nearby region. Tr. 375-76, 622, 737-39. As such, I find that the evidence on the record, 

including the testimony of Respondent’s employees, support the Secretary’s contention the 

saturated ground conditions at this area constituted a discrete safety hazard. 

 The Respondent similarly contends in regards to the third Mathies element that the 

ground conditions were not reasonably likely to lead to an injury because there was no evidence 

of a significant amount of water or wet material breaching the berm under regular conditions. 

Resp. Br. 33-34. The Respondent does acknowledge that there were prior instances in which 

irregular sliding caused miners to evacuate the bench, but appears to contend that under normal 

conditions workers had time to withdraw from the bench before a hazardous slide occurred. 

Resp. Br. 33. However, in the two major slides that did occur, despite their best efforts to 

outmaneuver the slides, at least three people were unable to avoid exposure to the rapid spread of 

unconsolidated material, and one person was seriously injured. Tr. 83, 98, 120. I note the 

specifics of the significant documented slides that did occur not as self-proving events, but as 

supporting evidence that ground falls are reasonably likely to occur in overpowering fashion. 

Additionally, as stated above, the 60 foot height of the highwall and saturated ground conditions 

made it reasonably likely for a highwall failure in this specific set of circumstances to involve a 

36 FMSHRC Page 1632
large amount of free flowing material. Thus, I find that the Respondent’s rebuttal argument on 

this element unconvincing. 

 For the reasons stated above, I find that the Secretary has produced evidence establishing 

the four required elements of the Mathies S&S test and that the Respondent’s rebuttal arguments 

are insufficient. Therefore, I affirm Citation No. 8521047 as reasonably likely and S&S. I also 

find that the violation did in fact cause Mr. Jones’ injuries to occur and that those injuries are 

permanently disabling. Tr. 120. 

4. Negligence 

 The Mine Act defines reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 CFR § 100.3: Table X. 

 The Secretary argues that the Respondent acted with high negligence as it was aware 

the toe was sliding on a regular basis and failed to take any additional corrective action other 

than relying upon the toe berm. Sec’y Br. 18-19. The Respondent states that there were no 

indications that ground conditions at the highwall were hazardous prior to the October slide. 

Resp. Br., 34. The Respondent points out that MSHA had inspected the mining methods in place 

on numerous occasions prior to the October slide and had never issued any citations for ground 

control violations. Resp. Br., 35. The Respondent specifically points to Inspector Westerly’s 

acknowledgement that he observed Respondent mining in damp conditions in January and May 

2011 and did not issue any citations as evidence Respondent had no reason to believe it was 

negligently excavating the overburden. Id.; Tr. 350, 354. 

 After considering the testimony and arguments of the parties, I initially find that the 

Respondent was actually aware of the saturated and regularly sliding material at the toe of the 

highwall. While Respondent believed the berm was an appropriate control method, this belief 

was not objectively reasonable, and I do not consider the use of the berm as a mitigating 

negligence factor. Additionally, previous inspections by MSHA without highwall citations do 

not stand as a mitigating factor in this situation. After noting that the May inspection occurred at 

the drier Northeast area of the mine and at a different level of the mine, I credit Inspector 

Westerly’s testimony that the ground conditions he observed in May were not nearly as saturated 

as those present immediately prior to the October 5 slide. Tr. 332-33,354, 359. Additionally, the 

January slide and other near overtopping events provided independent notice to Respondent 

regarding the hazards of saturated material and insufficiency of the berms. Tr. 83, 375, 617. 

 Thus, as Respondent was aware of the violative conditions and there were not any 

legitimate mitigating factors, I find that Citation No. 8521047 was the result of the Respondent’s 

high negligence. 

36 FMSHRC Page 1633
5. Unwarrantable Failure 

 

For Citation No. 8521047, I find that the Secretary has produced sufficient evidence to 

satisfy the five factor test considered by the Commission in evaluating unwarrantable failure 

designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation

 

I find that saturated ground conditions were extensive in the area of the October 5 slide 

and a number of significant slides had occurred at the HWY 59 mine in the previous two years. 

Foreman Howell testified that it was normal for a soupy sand and water mixture to run from the 

toe of the highwall in the shifts prior to the October 5 slide. Tr. 62. Howell also testified that 

that it had been necessary to add rock to the toe berm in order to “sheer” the berm up the evening 

shift prior to the slide. Tr. 723; Sec’y Ex. 8, 4. Vice President Kizziah indicated that the 

saturated condition at the toe of the highwall was an inherent characteristic of this area as the 

shale rock level was impervious to the groundwater that migrated through the overburden. Tr. 

614. Additionally, two major documented slides occurred in the space of nine months in this 

specific Northwestern region of the mine, excessive sliding had previously prompted Respondent 

employees to temporarily evacuate the bench on several occasions, and statements gathered 

during the investigation of the October slide indicate that additional major slides separate from 

the October and January 2011 slides had occurred in the previous two years. Tr. 83, 98, 187, 

365, 375-76, 617. 

b. Notice to the Operator

Inspector Brodeur testified in regards to his communications to Respondent following the 

January slide that, 

...it was obvious to me as well as TRI that (berming) was not a 

control method. I mean it didn’t work. The highwall slid out... 

TRI realized that that didn’t work as well and told me that they 

were not going to mine that West end of a pit. They were gonna 

cease mining in the West end of the pit and drive in a different 

direction, which would have been in the Northeast direction.” 

Tr. 90. 

However, Inspector Brodeur did not issue any violation in regards to the events that led 

up to the January slide, did not issue a withdrawal order for this area of the mine, and did not 

issue any safeguard directives regarding the hazards of the sliding saturated toe. Tr. 89. 

Inspector Brodeur appears to have not issued official orders on this matter because of his belief 

that the saturated condition of the highwall was isolated to that specific area and his reliance 

upon Superintendent Bridges’ representation that Respondent would not mine in that area 

anymore. Tr. 89-90. Inspector Brodeur also maintained that while he did not issue any clear 

directives or warnings, that he believed the sum of his conversations with Superintendent 

Bridges established the need to avoid or eliminate saturated ground conditions. Tr. 315-16. I 

note that while MSHA did not issue any formal directives on this issue, Superintendent Bridges 

made efforts to inform Inspector Brodeur that they were moving to a different, drier area of the 

36 FMSHRC Page 1634
mine during the course of the January 2011 hazard complaint investigation. Tr. 741-42. As 

such, it appears Respondent’s management was aware of Inspector Brodeur’s concerns regarding 

the saturated ground conditions at the Northwest area of the Hwy 59 mine. 

c. Prior Abatement Efforts

The Respondent claims that the toe berm, and particularly the enlarged 10-12 foot toe 

berm should be considered as a substantial abatement effort. Resp. Br. 45. However, as I have 

noted above, given the 60 foot height of the highwall and the demonstrated mass of material 

involved in the previous January slide, and the fact that other slides had come to the top of the 

berm, I find that the toe berm was not a legitimate abatement effort. Tr. 83, 617. The toe berm 

failed to eliminate the waterlogged nature of the material at the toe of the highwall, did not keep 

the toe of the highwall from sliding out, and was incapable of containing the type of significant 

slide Respondent was aware could occur after the January slide. Tr. 612, 676-77. As such, I find 

that the Respondent has failed to show it conducted noteworthy abatement efforts prior to the 

October 5 slide. 

d. Obviousness of the Hazard and Degree of Danger

The wet sliding nature of the material at the toe of the highwall was acknowledged by 

Respondent employees Howell, Kizziah, and Bridges. Tr. 62, 617, 749-51. While they did not 

subjectively consider this routine sliding a hazard, that belief was unreasonable, given the 

occurrence of the January slide and the readily apparent pressures exerted upon the toe berm. Tr. 

617, 737-39. Additionally, the regular sliding motion of the toe of a 60 foot highwall presented a 

high degree of danger to the workers on that bench, as it was obvious that a significant slide 

could produce enough material to sweep personnel and equipment over the adjacent bench. Tr. 

83. 

e. Operator’s Knowledge of the Violation

 Respondent was aware of, and in fact relied upon the wet and sliding condition of the toe 

of the highwall to continue production at this area. Tr. 62, 678, 749-51. Again, given that the 

Respondent’s ground control plan required movement in highwalls to be eliminated or 

barricaded, and that saturated material had contributed to the previous January slide, it was 

unreasonable for Respondent to disregard the hazards presented by the saturated sliding toe as 

routine sloughage. 

 As such, I have found that the Secretary has presented sufficient evidence for all of the 

Consolidation Coal unwarrantable failure factors. Furthermore, when considering the evidence 

on this matter as a whole, I find that Respondent acted with a serious lack of reasonable care in 

responding to the obvious destabilizing condition of the water saturated highwall toe. Thus, I 

hold that Citation No. 8521047 was the result of the Respondent’s unwarrantable failure to 

comply with the Mine Act. 

36 FMSHRC Page 1635
E. Order No. 8521048 

1. The Violation 

 Inspector Brodeur alleged in part within Order No. 8521048 that: 

Proper daily inspections are not being conducted at this mine site. 

...A section of the highwall approximately 230 feet across, 80 feet 

outward and 60 feet in height collapsed sending a wave of 

saturated sand and gravel material into an excavator and 100 ton 

haul truck.... An inspection of the highwall at the mine site after 

the accident indicates hazards existed that would be evident to 

even a casual observer, including loose material overhanging the 

pit, loose broken rocks at numerous locations on the highwall, 

water seepage from the highwall at several locations (including the 

first 60 feet of material which consist of unconsolidated sand and 

gravel), and the only bench on the 190 foot highwall is full, 

allowing material to fall into the pit. A review of the inspection 

records ... indicates no highwall hazards were present even though 

hazards are clearly evident and have existed for a considerable 

time period. 

Sec’y Ex. 6, 1-2. 

 

Brodeur determined that this failure to note hazards violated 30 CFR § 77.1713(a), an 

injury had occurred, the injury was permanently disabling, affected 1 person, the violation was 

S&S and the result of the operator’s unwarrantable failure to comply with the Mine Act. Sec’y 

Ex. 6. The Secretary proposed a specially assessed penalty of $70,000.00. Sec’y Proposed 

Assessment, Exhibit A. 

30 CFR § 77.1713(a) mandates: 

At least once during each working shift, or more often if necessary 

for safety, each active working area and each active surface 

installation shall be examined by a certified person designated by 

the operator to conduct such examinations for hazardous 

conditions and any hazardous conditions noted during such 

examinations shall be reported to the operator and shall be 

corrected by the operator. 

 As such, the Secretary must show that the conditions listed in Order No. 8521048 existed 

prior to the October slide, that a reasonably prudent miner would have identified these conditions 

as hazards requiring corrective action, and that Respondent failed to record these conditions in 

their examination records. 

36 FMSHRC Page 1636
 As noted above, Respondent Foreman Michael Howell stated that prior to the October 5 

slide he observed a soupy mixture of material running out from the toe of the slope. Tr. 62. 

Inspector Brodeur also testified credibly that during his investigation immediately after the slide, 

he observed water seepage, overhanging rocks, and full catch benches in areas adjacent to the 

slide. TR. 109-114, 116-18; Sec’y Ex. 6, 7-10. When presented with the Inspector Brodeur’s 

investigation photos, Respondent Foreman, Steve Smith, confirmed that while the slide itself had 

not yet covered the floor of the pit, the October 5 investigation photos depicted the conditions 

that were present at the overburden and shale rock highwall prior to the slide. Tr. 409-10. 

 These photos show several large areas where a significant amount of water seepage 

flowed from the bottom of the unconsolidated overburden layer over and across the face of the 

shale rock highwall. Tr. 109-110. Sec’y Ex. 6, 7-9. The last photo of the series shows a profile 

view of the highwall at the edge of the overburden face and the vertical shale rock highwall 

below. Tr. 117; Sec’y Ex. 6, 10. From the photo it appears that the overburden has pushed out 

to the very edge of the shale rock face and that there is not a horizontal catch bench. Id. In two 

separate investigation photos, a section of the overburden highwall has washed down across the 

shale rock face at the right hand side of the photos, as the dark gray shale rock is covered with 

red and tan clay and sand. Tr. 119; Sec’y Ex. 6, 8-9. It also appears that several large boulders 

and/or clay consolidations project from the upper face of the overburden. Sec’y Ex. 6, 8-9 

 

 However, Foremen Smith and Howell both maintained at hearing that none of these 

conditions, including the sliding of the toe, were hazardous or required notation in their daily 

pre-shift examinations. Tr. 405-06, 412-13, 722. The Respondent also argued that Order No. 

8521048 cannot pertain to hazards present at the area of the slide because it does not specifically 

reference the sliding material of the toe. Resp. Br. 51-52. The Respondent additionally states 

that the water seepage present on the walls was normal for this area. Resp. Br. 57; Tr. 448-49, 

Tr. 719-20. The Respondent finally contends that the there was a permanent catch berm in place 

at the toe of the overburden highwall adjacent to the slide area and any of the irregularities along 

the face of this highwall cannot be considered overhanging, as the photos indicate that the 

overburden is sloped back from vertical. Resp. Br. 58-59. 

After considering the evidence presented and the parties’ arguments, I find that the 

Secretary has established there were obvious hazards present at the area of the slide and the 

adjacent highwall which Respondent failed to either note or correct. I also find that the 

Respondent’s arguments on these points are insufficient and contrary to the hazards identified in 

their own ground control plan. 

As an initial matter, I find that Order No. 8521048 does include the area of the slide as it 

describes the collapse of the highwall and notes that this slide was comprised of “saturated sand 

and gravel.” Sec’y Ex. 6, 1. Thus, the Order specifically lists the saturation hazard of the 

overburden in the area that collapsed. Furthermore, as both Foreman Smith and Howell 

confirmed that the bottom of the overburden was wet and sliding out from the toe of the 

highwall, it is clear that the saturated nature of the toe in this area was obvious prior to the slide. 

Tr. 62, 405-06. Nevertheless, Smith and Howell failed to record the saturated material or regular 

sliding of the toe, recording that the highwall was “ok”, despite a notation on Oct. 4th that it had 

been necessary to shore up the berm where the excavator was digging from the “sand” 

36 FMSHRC Page 1637
overburden. Tr. 63-64, 405; Sec’y Ex 8, 4. For these reasons, I find that at the area of the slide, 

hazardous saturated ground conditions were evident prior to the slide and that Respondent failed 

to record these hazards. 

For the areas adjacent to the area of the slide, both Respondent employees and Inspector 

Brodeur stated that some water seepage was common at highwalls in mines in this area of 

Alabama. However, the fact that a condition is common in a particular area does not render that 

condition harmless. Inspector Brodeur credibly testified that water seeping from the highwall 

could wash out smaller binding material and make the highwall unstable. Tr. 111. Indeed, 

Respondent’s own ground control plan specifically noted that: 

Water seepage from rainfall or the natural watershed from eroding 

at the highwall will be controlled by using a settling pond... 

Sec’y Ex. 9, 6-15. 

While it appears that Respondent did make efforts to divert groundwater in some active 

areas of excavation and did set pumps at the lower pit area, it is also clear that Respondent did 

not record the areas in which seepage was occurring, give any indication of how much seepage 

was occurring, or list the manner in which that seepage was controlled, if at all. By failing to 

record the seepage Respondent failed to maintain an inspection system that allowed its 

employees to gauge and track the severity of ongoing seepage and erosion. 

It is also clear from the inspection photos and testimony that the bench above the shale 

rock on the North wall was full with loose unconsolidated overburden and that there was no 

horizontal catch bench between the overburden slope and vertical face of the shale highwall. Tr. 

117; Sec’y Ex. 6, 10. I find the Respondent’s claim that there was a functioning permanent catch 

berm at this area unconvincing. In the investigation photos, the relatively steep face of the 

overburden highwall has a constant unbroken slope that continues down to the vertical face of 

the shale highwall. Sec’y Ex. 6, 10. As such, once a stray rock or section of highwall began to 

roll or slide, there was neither a catch bench nor functional catch berm present that would 

contain even a small slide of unconsolidated material. Sec’y Ex. 6, 10. Indeed, as previously 

noted, the investigation photos show that in one area a large amount of sandy overburden has 

spilled down across the shale highwall. Sec’y Ex. 6, 7. 

Although the majority of photos are taken from a distance and the one close up view of 

the overburden only shows a narrow vertical band of the overburden slope, the investigation 

photos do give some support to Inspector Brodeur’s testimony that there were segments of 

broken up sandstone overhanging the highwall. Tr. 244-45. Respondent witnesses testified that 

there were no overhanging rocks in this area and the Respondent has argued that the overburden 

was not steep enough for rocks to overhang. Tr. 448, 719; Resp. Br. 60-61. While it is clear 

from the photos that the overburden highwall is less than vertical, I found Inspector Brodeur’s 

testimony on this matter credible when viewed in conjunction with the investigation photos, and 

I rely on his first hand observations and expertise in determining that there were rocks present on 

the unconsolidated overburden highwall which could topple over and slide or fall down to the pit 

below. 

36 FMSHRC Page 1638
Within their daily examination records, Respondent’s foremen uniformly described the 

highwall as “ok” and failed to note the presence of sliding saturated material in areas of active 

excavation or water seepage, full catch benches, or overhanging rocks at the North area of the 

overburden highwall. Two notations from the evening shifts on October 3rd and October 4th do 

state that the crew had “hauled rock to 150 to shear sand up” and “sheared rock up for Trackhoe 

digging sand.” Tr. 720, 723; Sec’y Ex. 8, 4-5. However, as explained in detail above, these 

entries only demonstrate that Respondent failed to recognize or record the saturated ground 

material as a significant hazard that required corrective action beyond reinforcing the toe berm. 

Therefore, I affirm the underlying violation in Order No. 8521048, as the Secretary has 

established the Respondent failed to record or correct obvious hazardous conditions a reasonably 

prudent miner would have recognized. 

2. Significant and Substantial 

 I have already found that Respondent violated a mandatory safety standard in failing to 

record obvious hazardous ground conditions per the requirements of 30 CFR § 77.1713(a). By 

failing to adequately inspect the highwalls, this violation contributed to the discrete safety 

hazards of uncorrected unstable and sliding ground conditions at the overburden highwall. 

Given the 60 foot height of the overburden highwall, the saturated condition of the toe, the noncohesive nature of the overburden, and the presence of many workers on both the Brookwood 

and Milldale levels, it was reasonably likely for a significant slide to occur, strike personnel and 

cause injuries. Tr. 62, 370-71, 665-666. Additionally, given that the shale rock highwall was 

approximately 40 feet high, it was reasonably likely that even a small slide of unconsolidated 

material on the North wall could fall to the pit below and strike workers on the drill crew below. 

Tr. 70, 413. Based on the height of the highwall and its unconsolidated nature, it was reasonably 

likely for a worker struck by either a mass of unconsolidated material or a stray boulder to suffer 

broken bones, blunt trauma, and asphyxiation ranging in severity from lost time to possibly fatal 

injuries. Tr. 120. As such, the evidence presented by the Secretary satisfies the four factors of 

the Mathies S&S test. 

 The Respondent primarily relied upon the same S&S arguments for Order No. 8521048 

as it did for Citation No. 8521047. Resp. Br., 62. I again incorporate my S&S analysis from 

Citation No. 8521947 in rejecting these arguments for Order No. 8521048. The Respondent also 

argues that the conditions on the North wall adjacent to the slide cannot be considered S&S as 

Inspector Brodeur did not issue individual ground control violations based on these conditions. 

Resp. Br., 64. The Respondent also states that Inspector Brodeur allowed abatement efforts to 

occur on the floor of the pit without correcting conditions on the highwall above. Id. I reject 

these arguments on three separate grounds. First, I have already found that the Respondent 

failed to adequately inspect or record the hazardous nature of the saturated sliding toe at the West 

area of the highwall and that this hazard was S&S within the context of both Citation No. 

8521047 and Order No. 8521048. As such, the failure to adequately inspect the West area of the 

highwall where the October slide occurred provides an independently sufficient basis to sustain 

the Secretary’s S&S determination for Order No. 8521048. Secondly, I have found above that 

failure to adequately inspect the North highwall was also S&S in that falling material would fall 

36 FMSHRC Page 1639
over 40 feet and was reasonably likely to strike workers present on the drill bench below. Tr. 

413. Although MSHA did not issue separate ground control violations for the specific 

conditions of the North overburden highwall, that does not diminish the demonstrated hazards 

presented by the failure to adequately inspect this area. Finally, although not critical to my S&S 

determination, Inspector Brodeur testified credibly that abatement efforts were not conducted at 

the foot of the shale rock highwall where sliding material would be reasonably likely to cause an 

injury. Tr. 240. 

For the reasons stated above, I find that the Secretary has established the four required 

elements of the Mathies S&S test and that the Respondent’s rebuttal arguments are insufficient to 

overcome the weight of evidence presented. As such, I affirm Citation No. 8521048 as 

reasonably likely and S&S. I also find that the violation did in fact contribute to Mr. Jones’ 

injuries and that those injuries are permanently disabling. Tr. 120. 

3. Negligence 

 After reviewing the evidence and testimony presented, I find that the saturated condition 

of the overburden toe on the West wall and the water seepage, full bench and loose overhanging 

rocks on the North wall were readily apparent hazardous conditions that should have been 

identified during pre-shift examinations. Respondent’s witnesses testified consistently that all of 

these conditions were visible prior to the October slide but stated that they did not consider them 

hazardous. Tr. 62, 410-11, 608. For the reasons detailed above regarding the likelihood of 

highwall failure and ground fall events, I find that this subjective belief was unreasonable. I 

found Inspector Brodeur and Inspector’s Westerly statements that they had not observed these 

sorts of hazardous conditions on previous inspections of the mine consistent, straight forward 

and credible. Tr. 71, 270, 286, 332-33, 359. Had they done so I have no reason to doubt that 

they would have issued citations for those conditions to the Respondent. Although Respondent 

recorded daily pre-shift examinations after receiving a 30 CFR 77.1713 (c) citation in December 

of 2009, they did not alter or bolster their inspection methods after failing to anticipate the 

January 2011 slide. Tr. 406-07, 680, 690, 758-759. After the occurrence of the January slide 

and other instances of excessive sliding, Respondent was particularly remiss in continuing to 

consider water seepage and saturated ground material as routine non-hazardous conditions that 

did not merit recording or control beyond the continued use of the working berm or last-second 

evacuations. Tr. 83, 375-76, 617. 

As such, Respondent has not established any mitigating circumstances in regards to the 

failure to identify, record, or correct the apparent hazardous conditions. For these reasons, I find 

that Order No. 8521048 was the result of the Respondent’s high negligence. 

4. Unwarrantable Failure 

 For Citation No. 8521048, I find that the Secretary has produced sufficient evidence to 

satisfy the five factor test considered by the Commission in evaluating unwarrantable failure 

designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

36 FMSHRC Page 1640
a. Extent and Duration of the Violation

 

The saturated condition of the soupy sand/water mixture on the West wall, and the water 

seepage, full bench, and overhanging material on the North wall were spread out over a distance 

of several hundred feet. Foreman Howell also testified that it was normal for the soupy 

sand/water mixture to run from the toe of the slope and a Respondent witness Howell testified it 

was necessary to shore up the working berm on the shift prior to the slide. Tr. 62, 723; Sec’y Ex. 

8, 4. As such, I find that the excessive saturated condition at the toe of the slope on the West 

wall was present for at least several shifts prior to the October slide. It also clear from Inspector 

Brodeur’s testimony and notes that similar conditions were present prior to the January slide. Tr. 

168-69; Sec’y Ex. 4, 10. Additionally, given the developed appearance of the North shale rock 

highwall, the presence of extensive water stains and one notable sand slide area on the North 

highwall, it appears that these conditions had been present on the North wall for many shifts. Tr. 

113-114; Sec’y Ex. 6, 7-10. 

b. Notice to the Operator

Inspector Brodeur issued the Respondent a violation of 30 CFR 77.1713(c) for a failure 

to record pre-shift examinations in December 2009. Tr. 267; Sec’y Ex. 11. Although MSHA 

issued this violation under the recordkeeping section of the inspection standard, this previous 

citation provided the Respondent with specific notice that inspecting and recording hazardous 

ground conditions was a critical safety requirement. 

c. Prior Abatement Efforts

As noted above, although the Respondent failed to anticipate the January slide, they did 

not offer any evidence of increased monitoring or testing of water saturation or slope stability. 

Tr. 680, 690, 758-759. While Truck Driver Williams’ testimony regarding temporary 

evacuations after excessive sliding demonstrates employees were aware of hazards, it also shows 

that Respondent took a reactive rather than proactive approach in responding to this hazard. Tr. 

375-76. As Respondent failed to show it had attempted to improve inspection efforts after the 

January slide, I find that Respondent has not established that it carried out notable abatement 

efforts. 

d. Obviousness of the Hazard and Degree of Danger

As I have found repeatedly above, the January slide and other near overtopping events 

made the continued disregard of saturated conditions at the highwall toe an obvious hazard. 

Additionally, the possibility of material sliding down the unprotected North overburden highwall 

was also made obvious by the presence of sand slides on the North highwall. Tr. 114, Sec’y Ex 

6, 9. Given the 60 foot height of the unconsolidated overburden highwall, and the 40 foot near 

vertical drop to the Milldale bench below, any ground slide in this area, whether large or small, 

presented a significant degree of danger to workers on both levels of the pit. Tr. 413. 

36 FMSHRC Page 1641
e. Operator’s Knowledge of the Violation

The Respondent was aware of the saturated toe, water seepage, full bench, and 

overhanging rocks present at the active area of the HWY 59 mine. Tr. 62, 410-11, 608. 

However, the Respondent’s witnesses did not subjectively consider these conditions a hazard. 

Tr. 448, 647-48, 719-23. As such, the Respondent did not fail to record those conditions through 

willful intent or a plan to conceal hazards which would constitute reckless disregard. However, 

the obviousness of the hazards and previous slide events made it unreasonable for Respondent to 

continue disregarding saturated ground conditions in particular. 

 Based on these findings, I hold the Secretary has presented sufficient evidence for all of 

the Consolidation Coal unwarrantable failure factors. Furthermore, when considering the 

evidence on this matter as a whole, I find that Respondent acted with a serious lack of reasonable 

care in conducting thorough inspections of the developing highwall. Thus, I hold that Order No. 

8521048 was the result of the Respondent’s unwarrantable failure to comply with the Mine Act. 

 IV. PENALTY 

 In determining the appropriate penalty for a violation, 30 CFR §100.3 generally directs 

me to consider: 

(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. 

 For these citations, the Secretary submitted a special assessment narrative form 

per 30 CFR § 100.5, stating that the violation was related to a non-fatal sliding material 

accident. Sec’y Narrative Findings, 1. The special assessment narrative form restated 

Inspector Brodeur’s gravity and negligence determinations and proposed the maximum 

penalty of $70,000.00 per violation allowed under Section 110 (a)(1) of the Act. Id. at 2. 

 MSHA had issued Respondent seven violations in the 15 months previous to this 

incident, none of which were ground control violations. Sec’y Prop. Assessment, 

Exhibit A. This violation history would normally correspond to a minimal amount of 

penalty points under 30 CFR § 100.3: Table VI. The Hwy 59 mine is a midsize mine 

while Walter Energy, the Controlling entity, is a large operator. Sec’y Prop. Assessment, 

Exhibit A. Respondent was highly negligent in failing to identify, correct and or 

eliminate the saturated ground conditions in places of active excavation, but as MSHA 

did not issue any formal directives regarding this condition, it did not act in willful 

violation of a site specific MSHA order. The Respondent has not asserted that the 

proposed penalty of $70,000.00 per violation would affect its ability to continue 

operations. The violations were significant and substantial violations of the Mine Act as 

36 FMSHRC Page 1642
they were reasonably likely to, and did in fact, result in a serious injury. The Respondent 

acted with good faith in promptly removing personnel from the area and ceasing all 

mining activities at the HWY 59 mine. Sec’y Br., 28. 

 The Special Assessment Narrative form restated the gravity and negligence 

determinations of Inspector Brodeur and listed several facts that supported these negligence 

determinations. Sec’y Narrative Findings, 1. However, neither the special assessment narrative 

form, nor the Secretary’s presentation of evidence at trial nor his post hearing brief articulated a 

specific reasoning for increasing the monetary penalties beyond the amounts that would have 

been generated by the standard 30 CFR § 100.3 penalty tables. As such, I find that the Special 

Assessment Narrative Form and the specially assessed penalty amounts provide no substantive 

guidance to my de novo determination of the appropriate penalty amount. 

As a starting point, it appears that Respondent would have received a normally assessed 

penalty under 30 CFR § 100.3 of $7,774 for Citation No. 8521047 after accounting for all 

gravity and negligence determinations, including the actual occurrence of an injury to a single 

individual.6 As Order No. 8521048 involved a single repeat violation of 30 CFR § 77.1313, it 

would have likely received a slightly higher regularly assessed penalty of $8,421. However, I 

note that the gravity of both violations is greater than that considered by the normal penalty 

calculation, as the violations exposed all workers involved in the excavation of the overburden to 

potentially fatal injuries. Additionally, Respondent resumed mining the area where it had 

informed Inspector Brodeur it would no longer mine without notifying MSHA, decreasing 

MSHA’s ability to promptly respond to changing conditions at the HWY 59 mine. Tr. 180. 

 

 For these specific reasons, I find that a penalty of $50,000.00 per violation serves as an 

appropriate penalty and deterrent to Respondent and other operators, warning them of the 

economic repercussions of ignoring obviously hazardous ground conditions. 

 6

 Upon reviewing the 30 CFR 100.3 penalty tables, Citation No. 8521047 would have 

received a total of 113 penalty points while Citation No. 8521048 would have received 114 

penalty points. 

36 FMSHRC Page 1643
V. ORDER 

Tuscaloosa Resources, LLC is hereby ORDERED to pay the Secretary of Labor 

the total sum of $100,000.00 within 30 days of this order.7 

/s/ David P. Simonton 

 David P. Simonton 

Administrative Law Judge 

Distribution: (First Class U.S. Mail) 

Sophia Haynes, Office of the Solicitor, U.S. Department of Labor 

61 Forsyth Street, SW, Atlanta, GA 30303 

Warren Lightfoot, Maynard Cooper & Gale, PC, 

1901 Sixth Avenue, 2400 Regions Harbert Plaza Birmingham, AL 35203 

Josh Bennett, Maynard Cooper & Gale, PC, 

1901 Sixth Avenue, 2400 Regions Harbert Plaza Birmingham, AL 35203 

 7

 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 

36 FMSHRC Page 1644
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

41 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 3003-844-5266 / FAX: 303-844-5268 

June 11, 2014 

ORDER OF DISMISSAL

These cases are before me on Notices of Contest filed by Pocahontas Coal Company 

pursuant to Section 105(d) of the Federal Mine Safety and Health. These contests are directed 

not at a particular citation or order but, rather, at five written notices to provide safeguard issued 

by MSHA pursuant to Section 314(b) of the Act. On March 24, 2014 the Secretary filed a 

motion to dismiss for lack of jurisdiction. Sec’y Mot. 1. Pocahontas raises a number of 

arguments in its notice of contest and its response to the motion to dismiss, however, for reasons 

that follow, I find that the Commission is without jurisdiction to consider these arguments in the 

context of these proceedings and, accordingly, I DISMISS these cases. 

On January 30th and February 4th, 2014 MSHA issued the five safeguards that are 

disputed in these dockets. In each case, MSHA notified Pocahontas that a mine specific 

requirement for safety, which related to the transportation of men and materials at the Affinity 

Mine, needed to be put in place. The “Condition or Practice” sections of the respective 

safeguards state that the documents are notices to provide safeguard and set forth the 

requirements MSHA seeks to impose. On February 27, 2014, Pocahontas filed these notices of 

contest pursuant to Section 105(d) of the Act to contest the issuance of each of the five 

safeguards. 

The Secretary argues in its motion to dismiss that the jurisdiction of the Commission does 

not extend to an independent review of a notice to provide safeguard. The Secretary relies on the 

language in Section 105(d) of the Mine Act and asserts that 105(d) does not confer specific 

POCAHONTAS COAL COMPANY, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

Respondent. 

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 CONTEST PROCEEDINGS 

Docket No. WEVA 2014-642-R 

Safeguard No. 7169714; 01/30/2014 

Docket No. WEVA 2014-646-R 

Safeguard No. 9002753; 02/04/2014 

Docket No. WEVA 2014-647-R 

Safeguard No. 9002751; 02/04/2014 

Docket No. WEVA 2014-648-R 

Safeguard No. 9002752; 020/4/2014 

Docket No. WEVA 2014-649-R 

Safeguard No. 9002750; 02/04/2014 

Affinity Mine 

Mine ID: 46-08878 

36 FMSHRC Page 1645
jurisdiction to hear a contest arising from a notice to provide safeguard and, instead, jurisdiction 

attaches only once a citation or order has been issued for a violation of the underlying safeguard. 

In its response the mine operator argues that, pursuant to 105(d) of the Act, the Commission does 

have jurisdiction to hear arguments on the initial notice to provide safeguard, and that to deny 

jurisdiction is a violation of the mine’s right to due process. 

While the Commission has acknowledged a mine operator’s right to contest the validity 

of a safeguard in the context of contest to a citation issued pursuant to a violation of the 

underlying safeguard, see e.g., Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992), it has not 

addressed the question of whether it has jurisdiction to hear a contest of a notice to provide 

safeguard in the context of a separate proceeding prior to the issuance of a citation or order for a 

violation of the safeguard. Nevertheless, Commission judges have declined to review the 

validity of an underlying safeguard prior to the issuance of a citation for a violation of the 

underlying safeguard. Beckley Coal Mining Co., 9 FMSHRC 1454 (Aug. 1987) (ALJ); 

Colorado Westmoreland, Inc., 10 FMSHRC 1236 (Sep. 1988) (ALJ); Jim Walters Resources, 

Inc., 18 FMSHRC 380 (Mar. 1996) (ALJ); Jim Walters Resources, Inc., Unpublished Order of 

Dismissal dated April 22, 1996, Docket No. SE 96-118-R (ALJ). I am aware that there is an ALJ 

decision that reaches an opposite conclusion, but I am not bound by that case, nor do I agree with 

the reasoning set forth in that matter. Affinity Coal Co., LLC, Unpublished Order Denying 

Motion to Dismiss dated August 29, 2013, Docket No. WEVA 2013-700-R et al. (ALJ). 

Similarly, the Commission has not addressed whether it has jurisdiction to hear a 

dedicated contest of a written notice of pattern of violations, and its judges, when addressing 

arguments similar to those raised in these matters, have reached conflicting results on that 

question. See Bledsoe Coal, Unpublished Order dated Nov. 11, 2011 (ALJ) (Judge William 

Moran found that the Commission did have jurisdiction to hear a contest of a written notice of 

pattern of violations); Brody Mining LLC, 36 FMSHRC ___, slip op. at 4, Docket No. WEVA 

2014-81-R (Jan. 30, 2014) (Chief Administrative Law Judge Robert Lesnick found that the 

Commission was without jurisdiction to adjudicate the mine operator’s contest of the written 

notice of pattern of violations by itself). 

The Mine Act does not grant the Commission unfettered jurisdiction. In Rushton Mining 

Co., 11 FMSHRC 759, 764 (May 1989) the Commission stated that it “is an agency created 

under the Mine Act with certain defined and limited administrative and adjudicative powers.” 

Given that the Commission is “an administrative agency created by statute, it cannot exceed the 

jurisdictional authority granted by Congress.” Black Beauty Coal Co., 34 FMSHRC 1856, 1860 

(Aug. 2012) (citing Kaiser Coal Corp., 10 FMSHRC 1165, 1169 (Sept. 1988)). A review of the 

Mine Act reveals no statutory authority for the Commission to hear a contest to a notice to 

provide safeguard in the context of a dedicated proceeding. Pocahontas has brought this action 

pursuant to section 105(d) of the Act. Section 105(d) provides mine operators with the right to 

contest, among a limited number other things, the issuance or modification of citations and 

orders. 30 U.S.C. § 815(d). Notably, the section does not afford a right to contest notices to 

provide safeguard. Further, the legislative history, the Secretary’s regulations, Commission case 

law, and the Commission’s Procedural Rules do not reveal any language which could be 

interpreted to grant the Commission jurisdiction to hear a contest of a notice to provide 

safeguard. 

36 FMSHRC Page 1646
Safeguards are a unique enforcement tool available to the Secretary. 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). Further, 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.” 

Id.; See also Cyrus Cumberland Resources Corp., 19 FMSHRC 1781, 1784-1785 (Nov. 1997). 

Given their unique nature, Safeguards cannot be construed to be either citations or orders. 

The Commission has stated that “in considering the meaning of the Mine Act, we must ‘give 

effect to the unambiguously expressed intent of Congress.’” Revelation Energy, 35 FMSHRC 

3333, 3337 (Nov. 2013) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 843 (1984)). Here, the distinction between a notice to provide safeguard and a citation 

or order issued subsequent to that notice is clear. The language of the Act makes clear that the 

notice to provide safeguard is a separate document which must be issued prior to any citation or 

order issued pursuant to section 314(b). Even if one could read some ambiguity into the 

language of the Act, Congress clearly intended to distinguish written notices issued pursuant to 

section 314(b), which are meant to act similar to a mandatory standard and put the mine on 

notice that in the future, the act or omission may result in a citation or order, from those citations 

or orders. If Congress had intended the Commission to hear contests to notices to provide 

safeguard, it would have said so or at least equated the notice to provide safeguard with citations 

or orders, which are subject to contest proceedings. Instead, Congress differentiated the notice to 

provide safeguard from citations and orders. 

Contestant is not without remedy on the issue and may properly challenge the notice to 

provide safeguard in the context of a contest to a citation or order issued for violation of the 

safeguard. Section 105(d), as mentioned above, provides mine operators with the right to contest 

the issuance or modification of citations and orders. 30 U.S.C. § 815(d). The section then 

charges the Commission with affording an opportunity for a hearing and then issuing “an order . 

. . affirming, modifying, or vacating the Secretary’s citation, order, or proposed penalty, or 

directing other appropriate relief.” Id. Section 105(d)’s “unambiguous[] . . . broad grant of . . . 

authority to direct ‘other appropriate relief’” allows the Commission to address a notice of 

pattern of violations in the context of a contest to a citation or order issued for violation of that 

safeguard. See North American Drillers, LLC, 34 FMSHRC 352, 356 (Feb. 2012). If and when 

a citation or order is issued that alleges a violation of the one of the safeguards herein, 

Pocahontas may file a notice of contest or contest any penalty that is assessed as a result of the 

citation, and at that time, also raise the validity of the safeguard as a defense to the violation. If 

36 FMSHRC Page 1647
Pocahontas wishes to pursue the arguments set forth in its notice of contest, it may properly do 

so in the context of those proceedings. 

The fact that the mine can contest any citation or order issued as a result of the notice to 

provide safeguard also negates the mine’s due process argument. Due process claims require the 

Commission to consider three factors when a deprivation to a property interest occurs: (1) "the 

private interest that will be affected by the official action;" (2) the risk of an "erroneous 

deprivation of such interest through the procedures used" and the value of additional or substitute 

procedural safeguards; and 3) the Government's interest, including ''the fiscal and administrative 

burdens that the additional or substitute procedural requirement would entail." Mathews v. 

Eldridge, 424 U.S. 319, 335 (1976). Due process, as described by the Court in Mathews, is “not 

a technical conception with a fixed content unrelated to time, place, and circumstances,” and 

further, “is flexible and calls for such procedural protections as the particular situation demands.” 

Id.(citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 

1230 (1961); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 

(1972). 

Here, Pocahontas argues that its property interest will be unjustly deprived should it not 

be able to immediately contest the notice to provide safeguard. It suggests that when a safeguard 

is issued it faces the “immediate choice” of spending “oftentimes large sums of money to comply 

with the safeguard” or accepting an order “effectively taking the equipment out of service or 

shutting down the mine.” Pocahontas Resp. to Mot. to Dismiss. 17. Moreover, it argues that 

there are no current procedures in place which can protect Pocahontas from erroneous 

deprivation. Finally, Pocahontas argues that any government interest in having MSHA respond 

“flexibly and quickly to unsafe conditions” must be subjected to “some type of check and 

balance that affords protection to mine operators.” Id. at 18. 

I have already found that Mine Act does not provide the Commission with a formal 

mechanism to exert jurisdiction over this matter. I agree with the Secretary’s argument that, 

because the Act does not provide the court with subject matter jurisdiction, it would amount to 

“bootstrapping” if the court could use an inquiry into whether constitutional due process has 

been violated to establish jurisdiction. Sec’y Reply. 5-6. Certainly I cannot create jurisdiction 

where none exists. Even so, I find that due process has not been violated. While a formal 

mechanism to immediately challenge the notice to provide safeguard may not exist, less formal 

mechanisms, such as a request for a technical citation, as is often used in the context of plan 

disputes, could seemingly be used to immediately contest the issue on an expedited basis. See

Mach Mining, 34 FMSHRC 1784, 1787 n. 8 (Aug. 2012). Further, the Secretary concedes that, 

if the operator wishes to bring a facial challenge, it may properly do so in Federal District Court. 

Finally, I find that the government interest in flexibly and quickly addressing hazards related to 

the transportation of men and materials is an extremely compelling one. While Pocahontas 

asserts that no check and balance exists, I disagree, and find that the current system already does 

provide an opportunity for a check on the validity of the safeguard through the ability to contest 

the notice to provide safeguard following the issuance of citation or order for violation of such. 

36 FMSHRC Page 1648
This docket contains no citations or orders, only the notice to provide safeguard that was 

issued to the mine, prior to the issuances of any 104(a) citation or order. Therefore, the above 

captioned contest proceedings are DISMISSED. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Benjamin Chaykin, U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard, 

22nd Floor West, Arlington, Virginia 22209-2247 

Robert Huston Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600, 

Charleston, WV 25339 

36 FMSHRC Page 1649
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: (303) 844-5266 / FAX: (303) 844-5268 

June 12, 2014 

DECISION

Appearances: Carol Liang, Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, for Petitioner; 

R. Henry Moore, Jackson Kelly, PLLC, Pittsburg, PA, for Respondent. 

Before: Judge Miller 

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

of Labor, Mine Safety and Health Administration (“MSHA”) against The Doe Run Company 

(“Doe Run”) at its Buick Mine/Mill, pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820. This docket involves one citation with a 

penalty assessed pursuant to section 110(i) of the Mine Act. The parties presented testimony 

and evidence at a hearing held on April 17, 2014 in St. Louis, Missouri. 

The parties agree that Doe Run is an operator as defined by the Act, and is subject to the 

jurisdiction and provisions of the Mine Safety and Health Act. The parties further agree that the 

citation was abated within the allowed time and the penalty of $2,106.00 will not inhibit the 

mine’s ability to continue in business. Jt. Stip. 11. Buick Mine/Mill consists of an underground 

mine that mines lead, copper and zinc, and a surface mill. The mine is located near Rolla, 

Missouri. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

On May 15, 2013, Inspector Dale Coleman with the Department of Labor’s Mine Safety 

and Health Administration (“MSHA”) issued Citation No. 8688248 under section 104(d)(1) of 

the Act for an alleged violation of 30 C.F.R. § 57.15005, which requires that “safety belts and 

lines shall be worn when persons work where there is danger of falling.” The citation alleges 

that a miner was working while standing on top of an electrical cabinet that was seven feet tall, 

without wearing fall protection. Inspector Coleman designated the alleged violation as 

reasonably likely to result in a permanently disabling injury, significant and substantial, one 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

THE DOE RUN COMPANY, 

 Respondent. 

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 CIVIL PENALTY PROCEEDING 

Docket No. CENT 2013-605-M 

A.C. No. 23-00457-325635-01 

Mine: Buick Mine/Mill 

36 FMSHRC Page 1650
person affected, and the result of high negligence on the part of the operator. The Secretary 

proposed a penalty of $2,106.00 for this citation. 

On May 15, 2013, two electricians, Marion Mills and Kevin Brady, were assigned to 

change out an electrical switch in the motor control room (“MCC”) at the mine. Mills and Brady 

were both experienced miners. Andrew Wlaschin, an electrical engineer, was responsible for 

supervising and directing the work of Mills and Brady while they completed the job. Wlaschin 

had been at the mine for less than a year and, while he had worked on various projects, had never 

performed the job which had been assigned to Mills and Brady. 

The assigned task required the two electricians to disconnect a cable in an electrical 

cabinet and pull the cable out from inside its location. The top of the cabinet, which is roughly 

34 inches by 36 inches in area, is approximately 7 feet, 7 inches above the cement floor below. 

Two pipes extend vertically from the top of the cabinet to the ceiling above. 

Prior to beginning the work, the electricians locked out power to the cabinet at a 

substation location. Locking out the power to the cabinet and work area also disabled the lights 

in the work area. As a result, the electricians worked with cap lamps and flashlights. After 

locking out the power, Mills removed the door on the high voltage center, and then moved to an 

adjacent cabinet to remove another door. Brady helped Mills with the removal and, as Mills 

began disconnecting the cable within the box, Wlaschin reminded Brady that he was required to 

wear a respirator. Brady left the area for a short time to locate the respirator and when he 

returned saw that Mills was inside the cabinet disconnecting the cable and Wlaschin was at his 

side. Brady then got a ladder, which he positioned next to the cabinet and climbed to the top of 

the cabinet to help pull the cable. 

Wlaschin saw Brady return with his respirator, get the ladder, and climb to the top of the 

cabinet, but he asserts that he was distracted by watching Mills and looking at prints, and did not 

see Brady step off of the ladder and climb on top of the cabinet. According to Wlaschin, he only 

noticed that Brady was on top of the cabinet after being told by the inspector that Brady was 

required to come down or have fall protection. Wlaschin acknowledged that he did not see any 

harness or other safety device on Brady as he climbed the ladder. 

Inspector Coleman testified that when he entered the room it was dark, although there 

was some ambient light. However, he immediately noticed movement and saw someone 

wearing a cap lamp while standing near the edge of the top of the cabinet. When Coleman 

shined his flashlight toward the top of the cabinet he saw Brady standing near the pipes, 

preparing to guide the cable. The top of the cabinet was flat and dry and it would have taken 

Brady a few minutes to pull the cable from that position. Coleman asked Wlaschin if Brady 

should be on the top of the cabinet without fall protection. Wlaschin testified that he responded 

to the question and agreed that Brady should have been wearing fall protection. Coleman 

remembers that Wlaschin did not agree and argued that fall protection was not necessary. Either 

Wlaschin or Coleman asked Brady to come down and he complied. As Brady made his way 

down, Wlaschin secured the ladder and Brady grabbed onto the cable tray above his head. Sec’y 

Ex. 2. However, Brady acknowledged that the cable tray was not strong enough to use as a place 

to tie off and that he saw nothing he could use as an anchor. Coleman testified that it was clear 

36 FMSHRC Page 1651
to him that Wlaschin had to see Brady on the top of the cabinet and failed to take any action as 

his supervisor. 

Wlaschin, the supervisor, did not indicate to the inspector that he was unaware of Brady’s 

position. Rather, Brady and Wlaschin told the inspector that there was no hazard and fall 

protection was not necessary. Brady explained that, because he was working in the middle of the 

area on top of the cabinet, and given the presence of a wall roughly 32 inches from the edge of 

the cabinet, there was no risk of falling. Brady acknowledged that he had been trained in the use 

of fall protection, and fall protection was available nearby for his use. Further, he testified that it 

was the company policy to use fall protection and he realized he may face disciplinary action for 

failing to do so. 

The mandatory standard requires that any person working in an area where there is a 

danger of falling must use fall protection. Brady was not wearing a safety belt and line, and was 

working in a small area atop a 7 foot 7 inch tall electrical cabinet, with a concrete floor below. 

Brady asserts that he was not in danger of falling due to working in the middle of the area on top 

of the cabinet and the presence of a wall approximately 32 inches from the edge of the top of the 

electrical box, which he could have used to catch himself had he lost his balance. I find these 

arguments to be entirely without merit. The area had no handrails or other protective devices 

which could have been used by Brady had he lost his balance. Further, working near the middle 

of a roughly nine square foot area, some of which was taken up by the pipes which extended up 

from the cabinet, still placed him perilously close to the edge of the cabinet. Furthermore, his 

belief that the wall 32 inches away from the edge of the electrical box would have prevented a 

fall is unreasonable. A miner should not, and must not, be expected to arrest themselves from 

falling by catching themselves against a wall 32 inches away from the surface they are standing 

on. Moreover, these miners were operating in an unlit room with only cap lamps and flashlights. 

I credit Coleman’s testimony that pulling cable can cause a miner to lose their balance. While 

Brady had not yet begun to pull the wire, he testified that he would have done so had he not been 

ordered down. Pulling wire would have exposed him to the hazard to a greater degree. I find 

that any misstep or loss of balance would have resulted in Brady falling over seven feet to the 

concrete floor below. Clearly a danger of falling existed. Given the location of the cabinet, its 

height, and that Brady was focused on removing cable, I find that there was a danger of falling, 

and hence, Brady should have been wearing fall protection. Accordingly, I find that a violation 

of the cited standard existed. 

I also find that the violation was significant and substantial. A “significant and 

substantial” violation is described in section 104(d)(1) of the Mine Act as a violation “of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated 

significant and substantial “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 Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 

1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its 

interpretation of the term “significant and substantial” to be: 

 In order to establish that a violation of a mandatory safety standard 

 is significant and substantial under National Gypsum, the Secretary

36 FMSHRC Page 1652
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. 

I have already found a violation of the cited standard. Moreover, I find that a discrete 

safety hazard existed; the danger of falling from a height of more than seven feet and landing on 

the concrete floor below. 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that 

the hazard will result in an injury. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 

1985). The Commission has explained that the third element of the 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). 

This evaluation is made in consideration of the length of time that the violative condition existed 

prior to the citation, and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 

FMSHRC 1573, 1574 (July 1984). In addition, the question of whether a particular violation is 

S&S is a circumstantial inquiry that 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). The Commission and courts have also observed that an 

experienced MSHA inspector’s opinion that a violation is significant and substantial is entitled to 

substantial weight. Harland Cumberland Coal Co., 20 FMSHRC, 1275, 1278-79 (Dec. 1998); 

Buck Creek Coal Inc., 52 F.3d 133, 135 (7th Cir. 1995). 

I find that there was a reasonable likelihood that the hazard would have resulted in an 

injury. Although Brady insists that he was only on top of the cabinet for a short time and he 

might be able to catch himself on the wall 32 inches away, I agree with Coleman that it is likely 

that he would fall from the top of the cabinet. In evaluating the level of exposure, I have 

considered the length of time the violation existed both before and after the inspector arrived. 

Brady acknowledged that he was on top of the cabinet preparing to pull wire prior to the 

inspector entering the room, and attests that he would have followed through had he not been 

ordered down. I find that, while the time of his exposure may have amounted to only minutes, 

there was more than enough time for Brady to fall. First, the area on the top of the cabinet was 

small for one person to stand on and some of that area was obstructed by the pipes which 

extended upward from the center of the cabinet. Given the size of the area, the obstructions 

present, and Brady’s position of working with his back to the edge of the cabinet, it is difficult to 

imagine how he could safely maneuver while maintaining his balance. Second, the area was 

dark. While the inspector testified that there was some ambient light present, Brady asserted that 

there was none. Accordingly, if Brady’s testimony is to be taken at face value, then the only 

light he had to work with was that which was provided by the cap lamp. The lack of light and 

36 FMSHRC Page 1653
the inability to fully see his surroundings certainly contributes to the likelihood of a fall. Third, 

Brady’s balance would have been compromised because he would have needed both hands to 

pull and direct the cable that was being removed from the cabinet. I credit Coleman’s testimony 

that pulling cable can cause a miner to lose his balance. Had Brady lost his balance, it is likely 

he would have attempted to arrest his fall by grabbing the cable tray, which he relied upon and 

grabbed to steady himself when descending the ladder. Notably, Brady conceded the cable tray 

could not support his weight. Given the circumstance, I find it likely that he would have fallen 

had the inspector not addressed the situation. 

The normal actions of miners must be considered in determining whether a violation is 

S&S. In discussing the injuries related to guarding in Thompson Bros. Coal Co., 6 FMSHRC 

2094, 2097 (Sept. 1984), the Commission took into account “inadvertent stumbling or falling, 

momentary inattention, or ordinary human carelessness” and explained that “in related contexts, 

we have emphasized that the constructions of mandatory safety standards involving miners 

behavior cannot ignore the vagaries of human conduct.” See, e.g., Great Western Electric, 5 

FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 (Nov. 

1981). Here, a simple misstep, inadvertent stumble, or moment of inattention would have 

resulted in Brady falling more than seven feet to the concrete floor below. 

The inspector testified that he is aware of a number of falls from such heights, including a 

fall in which a miner was attempting to pull cable prior to losing his balance and falling. 

Coleman explained that there have been fatalities in the mining industry as a result of falls from 

this height. I credit Coleman’s testimony and agree that falling from a height of more than seven 

and a half feet, as measured by the inspector, would result in a serious injury. It is reasonably 

likely that the miner would strike his head, break a bone, or receive other serious injuries due to 

the impact on the floor. The injuries would be permanently disabling or even fatal. Consistent 

with my above analysis, I find that the violation is significant and substantial. 

I also find that the violation was a result of the mine operator’s high negligence. The 

Secretary’s regulations explain that “high negligence” exists when “the operator knew or should 

have known of the violative condition or practice, and there are no mitigating circumstances.” 

30 C.F.R. § 100.3(d), Table X (defining “high negligence”). The Secretary argues that Doe Run 

“should have known of the violation, and presented no mitigating factors.” Sec’y Br. 11. I 

agree, and find that the operator either knew or should have known of the violation and that there 

were no mitigating circumstances. 

Inspector Coleman testified that, based on Wlaschin’s reaction to the inspector’s initial 

identification of the hazard, it was his belief that the supervisor, Wlaschin, knew or at the very 

least should have known, that Brady had climbed the ladder and was standing on top of the 

cabinet without fall protection. Specifically, Coleman noted Wlaschin’s lack of surprise that 

Brady did not have fall protection on, Wlaschin’s denial that fall protection was needed, and the 

absence of any argument presented by Wlaschin at the time of the incident that he did not know 

Brady was on top of the cabinet. While Wlaschin acknowledged that he was aware that Brady 

had begun to ascend the ladder, he claims that he did not know Brady was on top of the cabinet. 

Moreover, Wlaschin claims that, contrary to Coleman’s testimony, he did tell the inspector that 

he did not know that Brady had climbed on top of the cabinet. 

36 FMSHRC Page 1654
I credit the inspector’s testimony and find that Wlaschin had knowledge that Brady was 

on top of the cabinet without fall protection. While the area was dark, it is undisputed that 

Wlaschin saw Brady move the ladder into place and climb up without fall protection. I find it 

curious, at best, that, immediately upon seeing Brady begin to ascend the ladder, Wlaschin 

became distracted by Mills’ work and the blueprints he was holding on to.1 Moreover, I find it 

unlikely that he couldn’t hear Brady moving on top of the large metal cabinet or see the light of 

Brady’s cap lamp as he moved above. Tr. 62. I find that Wlaschin’s testimony amounts to 

revisionist history of the events and, accordingly, credit the inspector’s testimony and find that 

Wlaschin had knowledge of the violative condition. Moreover, I credit Coleman’s testimony and 

agree that no mitigating circumstances existed. Accordingly, I find that Wlaschin, exhibited high 

negligence. 

Doe Run, in arguing that the high negligence finding is not supported, states that Brady’s 

conduct “was an isolated incident involving one miner who disregarded the company’s policy, 

his training, and the availability of fall protection equipment” and that his negligence cannot be 

imputed to the operator. Resp. Br. 11. However, this argument, along with other arguments in 

its post hearing brief, ignores my above findings regarding Wlaschin’s high negligence. 

Undoubtedly, Brady acted with extreme negligence and has admitted as much. However, Brady 

was a rank-and file miner, whose negligence generally cannot be imputed to the operator. 

Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc., 

17 FMSHRC 1112, 1116 (July 1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 

(Aug. 1982)(“SOCCO”); Reading Anthracite Co., 32 FMSHRC 399, 411 (Apr. 2010) (ALJ). 

Wlaschin, on the other hand, was a supervisor, whose negligence can be imputed. See generally 

Capitol Cement Corp., 21 FMSHRC 883, 894 (Aug. 1999). Wlaschin offered testimony that he 

was relatively new to the mine, had far less experience than the two electricians he was 

observing, and hinted that he wasn’t really a supervisor because he was learning from the 

electricians and had never completed this specific task in the past. However, he was the one who 

noticed that Brady was not wearing his required respirator before starting the job, and signed the 

reprimand for Brady as his supervisor. Therefore, I find that Wlaschin was the supervisor in 

charge of the job. This finding is further supported by Brady’s testimony that Wlaschin was his 

supervisor. While Wlaschin is young and was only at the mine for about a year prior to the 

incident, he is well educated and agreed that he had training on the mine’s fall protection policy. 

I find that the totality of the evidence requires a finding that the violation was due to a 

combination of Brady’s and Wlaschin’s high negligence, and that Wlaschin’s negligence may 

properly be imputed to the operator. 

 1

 Wlaschin testified that he “saw Brady up on a ladder. Then he went back in the cabinet 

when Brady wasn’t standing there anymore.” Tr. 59. I find this testimony puzzling. If 

Wlaschin saw Brady standing on the ladder, and then saw that Brady was no longer on the 

ladder, and could not be seen on the ground, it stands to reason that Brady had climbed up, 

gotten off of the ladder, and was on top of the cabinet. Yet somehow, if Wlaschin’s testimony is 

to be believed, he failed to make this connection. At the very least, based on his own testimony, 

I find that Wlaschin should have known where Brady was and, given that he knew Brady did not 

have fall protection on, should have known of the violative condition. 

36 FMSHRC Page 1655
I also find that the violation was a result of the operator’s unwarrantable failure to 

comply with the mandatory standard. 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) 

(“R&P”); see also Buck Creek Coal, Inc., 52 F.3d at 136 (approving Commission's 

unwarrantable failure test). The Commission has explained that whether a citation is an 

“unwarrantable failure” is a question that should be evaluated based on the facts and 

circumstances in each case, and in light of each of the following factors: 1) the length of time 

that the violation has existed; 2) the extent of the violative condition; 3) whether the operator has 

been placed on notice that greater efforts were necessary for compliance; 4) the operator’s efforts 

in abating the violative condition; 5) whether the violation was obvious or posed a high degree of 

danger; and 6) the operator’s knowledge of the existence of the violation. See Consolidation 

Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). 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) (Commissioner Marks, concurring in part and 

dissenting in part). 

The condition did not exist for an extended period of time, nor was it particularly 

extensive, and the operator was prompt in abating the condition. It is undisputed that Brady was 

only on top of the cabinet for a few minutes. However, while only a few minutes would have 

been needed to complete the task at hand, only a moment of inattention was needed for a 

misstep, or loss of balance, to result in a fall. Coleman assumed, and Brady confirmed, that 

Brady would have worked without fall protection if Coleman had not entered onto the scene. 

Nonetheless, when told to come down, Brady did so immediately and did not complete the job 

until toggle bolts were installed so that he could safely tie off. The violative condition was 

confined to a small area, on one job, and one electrician who decided he could quickly pull the 

cable without having to locate and put on fall protection. While these three factors arguably 

weigh in the favor of the operator, the same cannot be said for the other factors. 

The condition was obvious. Coleman testified that almost immediately upon entering the 

room he noticed movement on top of the cabinet. While the room was dark, Brady’s cap lamp 

was plainly visible and clearly revealed his location on top of the cabinet. There is no dispute 

that Brady was not wearing fall protection and that he was working at a height of over seven feet 

above the concrete floor. Given my above findings regarding Wlaschin’s knowledge of Brady’s 

location and lack of fall protection, and his proximity to violative condition, I find that the 

condition was obvious and easily seen by Wlaschin despite his testimony to the contrary. 

The degree of danger and level of exposure presented by the condition are discussed in 

detail above in the context of my S&S analysis. Similarly, the operator’s knowledge of existence 

36 FMSHRC Page 1656
of the violation is discussed in detail above in my negligence analysis. Nevertheless, it is worth 

reiterating that, given the surrounding circumstances, Brady’s blatant disregard of law and 

Wlaschin’s failure to uphold the “high standard of care” required of mine operators made it 

reasonably likely that Brady would fall and suffer a serious injury. See 30 C.F.R. § 100.3(d). 

The Commission has long held that the negligence of a “rank-and-file” miner cannot be imputed 

to the operator for civil penalty purposes. Fort Scott, 17 FMSHRC at 1116; Western Fuels-Utah, 

Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); SOCCO, 4 FMSHRC at 1464. The Commission 

has further determined that “where a rank-and-file employee has violated the Act, the operator’s

supervision, training and disciplining of its employees must be examined to determine if the 

operator has taken reasonable steps necessary to prevent the rank-and-file miner’s violative 

conduct.” SOCCO at 1464 (emphasis in original). Finally, while this standard is normally 

applied in determining the operator’s negligence for penalty purposes, the Commission has 

confirmed that it also applies in determining whether an operator can be held responsible for a 

miner’s aggravated conduct and, thus, be found to have unwarrantably failed to comply with a 

regulation. Whayne Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997). In this case, I am 

particularly concerned that Brady, who agreed he had been trained, blatantly ignored the 

requirement to tie off. Brady is not a supervisor, but his training and any discipline at the mine 

obviously were not sufficient to cause him to follow the rules. 

The mine had been placed on notice that greater efforts were necessary for compliance. 

The inspector testified that he addressed the issue twice with the operator during inspections over 

the previous two years. In one instance, Coleman issued a citation where a miner was not tied 

off correctly while working at height. During a second inspection he had a conversation with the 

operator regarding its failure to have tie off points in an elevated area that was accessed by 

miners. In the course of those conversations he discussed with the mine the need to “improve 

[tie off] . . . points and focus on fall protection better.” Tr. 32. While I agree with the operator 

that, on its face, the limited history of violations does not provide an especially strong case that 

notice was provided, I credit Coleman’s testimony that he did have conversations with the mine 

regarding the need to focus on fall protection after he identified a place in the mine where miners 

worked in an elevated area without tie off points. Similarly, here, tie off points were also not 

available in the area where a miner was working. While Doe Run argues that these two events 

were not part of Coleman’s calculus of the unwarrantable failure designation, I find that the facts 

bear out that the mine was on notice. Accordingly, I find that Coleman did place the mine on 

notice that greater efforts were necessary for compliance. 

I have already found that both Brady and Wlaschin exhibited high negligence. They both 

knew that Brady should not be working at a height of over seven feet without fall protection, yet, 

Brady chose to do so and Wlaschin chose to keep his attention elsewhere. In doing so, Brady 

engaged in intentional misconduct and his supervisor exhibited a serious lack of reasonable care, 

both of which are indicative of “more than ordinary negligence.” Wlaschin’s conduct cannot be 

excused because he is relatively new or has less experience than the electricians he worked with 

at the time of the violation. He is well-educated and as a supervisor should know the rules about 

working safely. While the condition may have been short-lived, it was a serious hazard that was 

ignored, and could have quickly led to a fall, which would have resulted in a serious and 

potentially fatal injury. Therefore, I agree that the violation was an unwarrantable failure. 

36 FMSHRC Page 1657
II. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The 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” six statutory penalty criteria which include the history of violations, the 

size of the operator, the negligence, gravity, the ability to continue in business and good faith 

abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has 

held that “findings of fact on the statutory penalty criteria must be made” by its judges. 

Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). 

Once findings on the statutory criteria have been made, a judge's penalty assessment for a 

particular violation is an exercise of discretion, which is “bounded by proper consideration of the 

statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22 

FMSHRC 616, 620 (May 2000). 

In the instant case, the operator is large, has no unusual history of these types of 

violations, and abated the condition in good faith. The inspector indicated that the negligence 

was high and, given the facts as discussed above, I agree. I have discussed the gravity and S&S 

nature above and find that a penalty of $2,106.00 as proposed by the Secretary is appropriate. 

III. ORDER 

The citation is affirmed as issued and Doe Run is hereby ORDERED to pay the 

Secretary of Labor the sum of $2,106.00 within 30 days of the date of this decision. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Carol Liang, U.S. Department of Labor, Office of the Solicitor, MSHA Backlog Project, 1999 

Broadway, Suite 800, Denver, CO 80202-5708 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty Avenue, 

Pittsburgh, PA 15222 

36 FMSHRC Page 1658
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

June 18, 2014 

DECISION AND ORDER

REINSTATING KEITH OVERFIELD

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, TN, Representing the Secretary of Labor 

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, KY 

Representing Respondent 

Before: Judge Lewis 

On May 13, 2014, pursuant to section 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor 

(ASecretary@) filed an Application for Temporary Reinstatement of miner Keith Overfield 

(“Overfield” or “Complainant”) to his former position with Highland Mining Company, LLC, 

(AHighland@ or ARespondent@) at the Highland #9 Mine pending final hearing and disposition of 

the case. 

That application followed a Discrimination Complaint filed by Overfield on April 3, 

2014, that alleged, in effect, that his termination was motivated by his protected activity. The 

Secretary represents that this Complaint was not frivolously brought and requests an Order 

directing Respondent to reinstate Overfield to his former position and rate of pay. 

On May 21, 2014 Respondent requested a hearing regarding this application via certified 

letter. A hearing was held in Evansville, Indiana on June 10, 2014. The Secretary presented the 

testimony of the complainant. Respondent had the opportunity to cross-examine the Secretary=s 

witnesses and present testimony and documentary evidence in support of its position. 29 C.F.R. 

'2700.45(d). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of KEITH OVERFIELD, 

 Complainant 

v. 

HIGHLAND MINING COMPANY, LLC 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

DISCRIMINATION PROCEEDING 

Docket No. KENT 2014-483-D 

MSHA Case No.: MADI-CD-2014-13 

Mine: Highland #9 

Mine ID: 15-02709 

36 FMSHRC Page 1659
At the close of the hearing Respondent conceded that the miner’s complaint had not been 

frivolously brought. However, Respondent maintained that the miners’ discrimination claim 

should be barred because of untimely filing. In the alternative, Respondent further argued that 

any reinstatement order should be modified based upon the mine’s shut down, tolling 

Respondent’s Reinstatement obligation. 

 For the reasons set forth below, I grant the Secretary’s application for temporary 

reinstatement of Overfield, find that Overfield’s discrimination claim is not barred upon late 

filing, and find that there should be no tolling of Respondent’s reinstatement obligation pending 

full hearing. 

Discussion of Relevant Law

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

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

play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be 

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

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

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and

Health Act of 1977, at 623 (1978). 

Congress created the temporary reinstatement as “an essential protection for complaining 

miners who may not be in the financial position to suffer even a short period of unemployment 

or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181, 

95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624-25 (1978).

 Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

substantial evidence standard applies.1 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining Awhether the evidence mustered by the miners to date established that

their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990). 

 1 ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept 

as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 

229 (1938)). 

36 FMSHRC Page 1660
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also 

equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.” Sec'y 

of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 

920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that establishing ‘reasonable 

cause to believe’ that a violation of the statute has occurred is a ‘relatively insubstantial’ 

burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3 

(Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th 

Cir. 2001).

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Sec=y of Labor on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of Labor on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

However, in the instant matter, the Secretary and Overfield need not prove a prima facie

case of discrimination with all of the elements required at the higher evidentiary standard needed 

for a decision on the merits. Rather, the same analytical framework is followed within the 

“reasonable cause to believe” standard. Thus, there must be “substantial evidence” of both the 

applicant=s protected activity and a nexus between the protected activity and the alleged 

discrimination. To establish the nexus, the Commission has identified these indications of 

discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the 

protected activity; and (3) coincidence in time between the protected activity and the adverse 

action. Sec=y of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 

1089 (Oct. 2009). The Commission has acknowledged that it is often difficult to establish a 

Amotivational nexus between protected activity and the adverse action that is the subject of the 

complaint.@ Sec=y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 

(Sept.1999). The Commission has further considered the disparate treatment of the miner in 

analyzing the nexus requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 

1983). 

Stipulations 

The parties stipulated to the following legal and factual propositions: 

1. At all times relevant to this action, Highland Mining, LLC has extracted and 

produced coal in interstate commerce 

36 FMSHRC Page 1661
2. Highland Mining, LLC owns and operates the No. 9 mine located in Union 

County, Kentucky 

3. Highland Mining, LLC is an operator subject to the jurisdiction of the Federal 

Mine Safety and Health Administration and its Administrative Law Judges.2

4. Keith Raymond Overfield was employed by Highland Mining, LLC as a mine 

examiner at Highland No. 9 mine during the period from 12/5/2012 through 

September 30, 2013. He began at Highland on September 20, 2010. 

5. Keith Raymond Overfield left employment at the Highland Mining, LLC No. 9 

mine on September 30, 2013. 

6. Keith Raymond Overfield filed a complaint with the Federal Mine Safety and 

Health Administration on April 3, 2014 alleging that he was wrongfully 

terminated from his employment at Highland Mining, LLC No. 9 Mine. 

(Joint Exhibit 1).3

Contentions of the Parties

 On April 3, 2014, McKinsey executed a Summary of Discriminatory Action. It was filed 

with his Discrimination Complaint on the same date. In this statement he alleged the following4: 

I feel I was discharged because I am a mine examiner and was finding numerous 

violations that I wrote in the exam book. They didn’t want me to put all of them 

in the box but allow them to just take care of them. I couldn’t do that so when I 

had to take leave for a medical condition, they used that to discharge me. I am 

asking for my job back with all back pay and benefits restored. 

GX-1: Application for Temporary Reinstatement at Exhibit B, p. 2. 

The Secretary also submitted the May 12, 2014 Declaration of Curtis Hardison, a Special 

Investigator employed by the Mine Safety and Health Administration, with the Application. 

Inspector Hardison wrote that he investigated Overfield’s discrimination claim against 2

 Clearly the parties intended to refer to the Federal Mine Safety and Health Review 

Commission’s Administrative Law Judges. The undersigned takes no offense. 

3 Hereinafter Joint exhibits will be referred to as “JX” followed by the number. 

Government exhibits will be referred to as “GX” and Respondent’s exhibits as “RX.” 

4

 The left-hand margin of the photocopied Discrimination Report filed by the Secretary 

was cut off. As a result, several words are either missing in whole or in part. These words have 

been recreated to the extent possible. Words and letters that are based on attempts to complete 

the document are included in brackets. 

36 FMSHRC Page 1662
Respondent. Based on his investigation, Hardison concluded the following relevant facts were 

true: 

4. Based on the foregoing facts and other facts gathered during my investigation, I

have concluded that Keith Overfield was terminated on September 28, 2013 by

Highland because he made safety complaints and engaged in protected activity

during the summer of 2013. Highland also engaged in activity that interfered with

the miners’ rights of examiners at the No. 9 mine, including Keith Overfield. This

constructive discharge violated Section 105(c) of the Mine Act. Accordingly, the

complaint filed by Mr. Overfield was not frivolous.

Id. at Exhibit A, p. 3. The Secretary cited this declaration as a basis for the formal request for 

temporary reinstatement. (GX-1). In addition, both Hardison and Secretary’s counsel at hearing 

asserted that Overfield’s late filing in this matter was excusable as arising from justifiable 

ignorance, mistake, inadvertence, or excusable neglect. (Transcript at 111-112)(GX-1: 

Application for Temporary Reinstatement at Exhibit A, p. 2).5 Further the Secretary asserts that 

there is a non-frivolous issue as to whether a subsequent layoff properly included Overfield. (Tr. 

118-120). 

Respondent disputes the Secretary’s claim that Overfield was terminated for making 

safety complaints, but concedes that the discrimination was not frivolously brought. (Tr. 110). 

However, Respondent argues that the discrimination complaint should not be considered because 

Overfield was impermissibly late in filing. (Tr. 111-116). Further, Respondent argues that even 

if reinstatement were appropriate, that Overfield would currently be laid off as a result of an 

unrelated accident that occurred at Respondent’s Prep Plant. (Tr. 118-120). 

Summary of Testimony

At the time of the hearing, Keith Overfield had last worked September 17, 2013 at the 

Highland #9 Mine as a certified mine examiner.6 (Tr. 16). Overfield had started at the mine 

around September 20, 2010 as a roof bolter. (Tr. 16). 

In November 2011, while a roof bolter, Overfield filled in for Respondent’s mine 

examiner, Mark Burns. (Tr. 17). He did so because Burns was sick and, according to 

management, would not return to work. (Tr. 17). In that capacity Overfield examined the air 

courses and pre-shifted outby areas. (Tr. 17-18). To examine an air course, Overfield would 

5

 Hereinafter references to the transcript will be cited “Tr.” with the page number. 

6

 Overfield was present at the hearing and testified. (Tr. 15). Overfield had ten years of 

experience in underground mining and had held a Kentucky mine foreman certification since 

2006. (Tr. 16-17, 60). At the time of the hearing Overfield was unemployed. (Tr. 15-16). 

36 FMSHRC Page 1663
travel an intake or return in its entirety and mark down any hazards or violations. 7 (Tr. 18). 

During examinations, Overfield would take air readings to ensure the air was flowing with the 

necessary amount pressure and in the proper direction. (Tr. 18). Hazards, violations, and the 

course traveled were marked in a book at the surface, as was required by state and federal law. 

(Tr. 18-19). Most of the violations he found were pins (or roof bolts) out, pins sucking above the 

plates, or pins spread. (Tr. 20). Sometimes he found a substantial amount of these conditions. 

(Tr. 20). In a separate book, he would note the air readings. (Tr. 18-19). 

Overfield examined about two miles a day in the air courses. (Tr. 21). In the returns, 

Overfield would use a permissible ride and in the intakes he would use a golf cart. (Tr. 21). 

Sometimes he was unable to get a ride because another miner, Darrell Bradshaw, would cut off 

the locks and take it. (Tr. 21, 65). These late starts would greatly affect his ability to conduct 

examinations. (Tr. 22). As a result, he would have to rush to complete the examinations in time 

and would not have the opportunity to do them properly. (Tr. 22). He rushed because this 

examination had to be completed before 12:00 a.m. Tuesday each week, or a violation would be 

issued. (Tr. 22-23). Overfield reported Bradshaw’s thefts to “everybody” in management 

including the mine manager, the assistant mine manager, the safety department, the mine 

foreman. (Tr. 21-23). He even called the assistant mine foreman because he was stressed out 

trying to complete his job without the necessary tools. (Tr. 23). Overfield filed a harassment 

charge against Bradshaw. (Tr. 65). Both Overfield and Bradshaw were union employees, not 

management. (Tr. 66). Overfield was aware that he had the right go to the union representative 

and spoke to another miner, Larry Baker, about the situation. (Tr. 66). 

In May 2012, Overfield went to the No. 2 unit’s intake air course and found that his golf 

cart was missing again. (Tr. 24). Overfield attempted to reach the mine foreman, but he 

believed the foreman knew the reason for his called and chose to ignore it. (Tr. 24). The ride 

was eventually returned at 10:30, but the battery needed to be charged. (Tr. 24). Overfield then 

went to the foreman, Sleigh Kuykendall, and told him that the golf cart was dead and that he 

would not be able to complete the examination by midnight. (Tr. 24-25). Kuykendall said that 

he was tired of Overfield acting like he was a boss and that when Overfield returned to the pin 

crew he would show him who was boss. (Tr. 25). Overfield believed his job was permanent. 

(Tr. 25). He told Kuykendall that it was against the law to allow the air course to remain 

unexamined past 12:00 a.m. and that he was out of line. (Tr. 25). 

The next day the Overfield’s supervisor, assistant mine manager Aaron Farmer, told him 

that he would return to his duties as a roof bolter. (Tr. 20, 25-26). George Tudor was present as 

Overfield’s union assistance. (Tr. 25). Farmer said he was not happy that Overfield had 

approached Kuykendall but Overfield believed he was just abiding by the law. (Tr. 26). 

In November, Farmer told Overfield that examiners could not or would not finish the air 

course examination in seven days and Respondent was receiving citations for inadequate 

 7

 Until the new law was passed in 2012, Overfield did not use the term “violation” to 

refer to conditions found in the mine. (Tr. 19). However, the way he conducted the examination 

did not change with the new law, he just changed the way he referred to conditions in the book. 

(Tr. 19). 

36 FMSHRC Page 1664
examination. (Tr. 26-27, 74-75). Farmer asked Overfield to apply for a soon-to-be posted 

examiner job.8

 (Tr. 26-27). Respondent wanted him to fix the problem by actually marking 

conditions in the book. (Tr. 75). Overfield bid for the permanent examiner job and was certified 

in December 2012, though he already had the proper paperwork before that point. (Tr. 27, 65). 

When Overfield returned to the examiner position, he was still working on air courses but 

two months later switched to the rotating crew examining belts.9 (Tr. 27-28). This was the 

position he held until he left Highland. (Tr. 28). In that position he rotated between the day and 

second shift conducting the on-shift examination. (Tr. 28-29). When on day shift he examined 

the main north, main east, to No. 2 and 4 unit outby area of the mine for conditions in the belt 

entry. (Tr. 28, 30). He would cover around six miles in a day examining three main belts and 

two unit belts. (Tr. 29). He would check the belts and rollers, but also loose ribs, loose top, and 

pins out. (Tr. 29). He traveled mostly along the belt in a golf cart. (Tr. 29). During his preshift, Overfield would examine the outby travel supply roads. (Tr. 30). As a result, his name 

would be in both the pre-shift and on-shift book. (Tr. 30-31). Any condition he found were 

recorded and signed in on-shift book at the surface. (Tr. 29-30). If a condition required attention 

because it posed an immediate hazard or could not be corrected, Overfield would call out for 

repairs. (Tr. 30). 

In December 2012, Overfield, along with three other examiners and some salaried 

personnel, received written reprimands for failure to complete his examination books properly. 

(Tr. 71-72, 74). Farmer informed him that he had failed to follow MSHA regulation and 

Respondent’s policy because the examiners had failed to take air readings while moving a power 

de-energized power unit. (Tr. 71-72). MSHA Inspector Felix issued an Order for failure to 

include an air reading on three straight shifts on which the foreman signed off. (Tr. 72-73). 

Overfield did not believe that there was a hazard. (Tr. 72-73). He did not fail to include 

information; he misunderstood what was required under the law. (Tr. 72-73, 78). Overfield 

conceded that he should have known better but he also asserted that he followed the example of 

more senior examiners who had moved in this manner for as long as they could recall. (Tr. 72-

74). Respondent had known about this practice long before the reprimand and had only 

disciplined the examiners after the violation was issued. (Tr. 77). Because of this, Farmer stated 

he did not want to discipline the examiners but that he was under pressure from MSHA to 

discipline them and the salaried personnel. (Tr. 74). Overfield believed Respondent should have 

corrected the problem rather than blaming the examiners. (Tr. 73). 

Sometime after Overfield returned to examination, Farmer quit and was replaced by Les 

Hawkins. (Tr. 31). Hawkins and Overfield had numerous discussions regarding information 

recorded in the books. (Tr. 31, 34). Hawkins would ask Overfield to quit writing down pin 

violations and to write fewer conditions and then correct them the next day. (Tr. 31). Overfield 

believed that if something was recorded and it was not corrected or worked on within a certain 

number of shifts, MSHA would issue an order. (Tr. 33). Management said that in recording 

numerous pins in the supply and belt roads, that Overfield was doing MSHA’s job for them. (Tr. 

 8

 As this was a union mine, were required to be posted for bidding. (Tr. 27). 

9

 The problem with the locks continued. (Tr. 65). 

36 FMSHRC Page 1665
34). MSHA would see the recorded conditions, go to the recorded location, and then cite 

Respondent if the condition was not fixed. (Tr. 34-35). Overfield tried to comply with 

Hawkin’s request, but it did not work out. (Tr. 31-32). A few times he did not record 

conditions, but later he or the foreman would write it up or tell another examiner about it. (Tr. 

32). Most of the condition he did not record were damaged or spread pins. (Tr. 32). He would 

not report conditions if he felt he was already overwhelming management with what he had 

found. (Tr. 32). For example, if he saw four conditions he might only record three. (Tr. 32-33). 

In August 2013 Hawkins spoke with Overfield about 25 missing bolts that Overfield had 

recorded in the book following an examination. (Tr. 35). Hawkins asked Overfield “what the 

deal was” with writing down 25 pins. (Tr. 35). Overfield told him that he was doing his job. 

(Tr. 35). Hawkins said he was ruffling feathers, that he and Mike Jones, the overseer of mines, 

were unhappy about it, and that he should “watch it.” (Tr. 35-36, 43). Overfield believed that 

MSHA wrote citations for this condition. (Tr. 35). 

In addition to Hawkins, assistant mine foreman Randy Lehman, Luke Hunley, and 

Rodney Sims would heckle Overfield about writing up conditions. (Tr. 69-70). They would ask 

each day how many pins he wrote up. (Tr. 69-70). Terry Johnson would ask him “how much 

dumb shit did you write up today.” (Tr. 70). That was all they said. (Tr. 70). Overfield felt that 

Johnson was joking and did not feel pressured as a result. (Tr. 70-71). No one else in 

management complained about what Overfield wrote or did not write in the books. (Tr. 71). 

Overfield spoke with the union regarding management. (Tr. 66). In particular, he spoke 

with Baker (and perhaps others) in June 2013 about the fact that management “stayed on his 

butt” for writing up pins. (Tr. 67). However, Overfield did not file a grievance because he was 

still noting hazards he saw and he or someone else was correcting them. (Tr. 68). Baker told him 

to continue to write things up. (Tr. 68). Overfield was not aware of Baker speaking to anyone in 

management about the situation and did not ask him to. (Tr. 68). Nothing changed after he 

spoke with Baker, Hawkins continued to talk him about the conditions he noted. (Tr. 68-69). 

Overfield felt pressure from management. (Tr. 36). He had been receiving treatment 

from neurologist Michael Mayron for depression and attention deficit disorder since 2008 

(before working for Respondent). (Tr. 37, 58). Respondent was probably not aware that he was 

seeing Dr. Mayron, but they were aware of his condition. (Tr. 37). Overfield had separate 

conversations with Hawkins, Farmer, and Ezra French regarding his depression. (Tr. 38). 

Usually, he would discuss the condition when he was doing better. (Tr. 38). He was pretty sure 

that they knew he was on medication. (Tr. 38). 

On September 17 Overfield returned from work and saw that his house had been robbed 

for the fourth time since June. (Tr. 36). He had filed two previous police reports but to no avail. 

(Tr. 36-37). When he saw his home he suffered a nervous breakdown. (Tr. 37). He then 

purchased a crossbow (because all of his guns were stolen), parked his car in the woods, and sat 

in the dark with the lights out for four days hoping to learn who had broken into his house. (Tr. 

38). While there, Overfield was scheduled to work but did not attend. (Tr. 38-39). Instead, he 

called each day and left messages stating he was unable to go to work. (Tr. 39-40). He believed 

he could use his sick days and that he was not violating the attendance policy. (Tr. 40, 75). One 

36 FMSHRC Page 1666
day he told the mine foreman, Mickey Morris, that he would not be able to go to work and that 

he needed psychiatric help. (Tr. 39). He recognized that he was having a breakdown and that he 

was not fit to work. (Tr. 39-40, 76). Eventually, he called Dr. Mayron to set up an appointment 

on the 25th, which was the earliest available date. (Tr. 40-41). He tried to call his family doctor 

but the doctor was out of town. (Tr. 40). 

On Monday, Hawkins left a voicemail with Overfield asking him to do an air course 

examination. (Tr. 41). Overfield called back and said he had had a breakdown, that he had an 

appointment with a doctor the next day, and that he could not come in. (Tr. 41). Hawkins asked 

him to come in and said they would work something out. (Tr. 41). Overfield did not believe he 

had any business being there, but Hawkins knew Overfield would do anything if the mine was in 

trouble. (Tr. 41). As a result, Overfield went to the mine around 2:30 to talk to Hawkins. (Tr. 

41-42). He did not clock in or wear the mining clothes he stored at the mine. (Tr. 42). 

At the meeting Overfield informed Hawkins that he had a doctor’s appointment the next 

day and did not believe he needed to be present, but that he would do an examination if 

necessary.10 (Tr. 42-43). Hawkins told him to wait and then brought in Mike Jones and Tanya 

McCullough.11 (Tr. 43, 100). When he arrived, Overfield did not anticipate that he would have 

a meeting with HR and management. (Tr. 44). The situation made Overfield’s mental condition 

worse. (Tr. 44). Mike Jones asked Overfield what happened and Overfield said that he had had 

a nervous breakdown and was going to see a doctor. (Tr. 44). Mike Jones told him that he was 

going to be suspended with intent to discharge because he was absent for five days without a 

doctor’s excuse and then gave him documents to that effect. (Tr. 44-45). Overfield asked for 

FMLA time and it was denied. (Tr. 44). When he said he had a doctor’s appointment the next 

day, Jones said to bring a doctor’s note in and they would see what they could do. (Tr. 46). 

On the 25th, Overfield saw Dr. Mayron. (Tr. 46). He did not feel ready to go back to 

work and Dr. Mayron excused him from the 17th through the 26th. (Tr. 46, 76). The excuse 

verified that he was not able to work and he brought the note to HR. (Tr. 46-47). He did not 

know of any policy against a backdated doctor’s excuses. (Tr. 75). Overfield felt on the 26th that 

he could return to work. (Tr. 77). He then called the mine and was told by McCullough that he 

was still suspended with intent to discharge. (Tr. 47). 

On September 29, 2013 Overfield attended a meeting with Respondent. (Tr. 47-48). He 

first met with union officials, including Steve Jones, the District 12 Union Representative; Terry 

Miller, the Local 1793 President; George Tudor, the Local Union Treasurer; and Baker, Local 

 10 While at the mine, Overfield checked the air course books to see if he was actually 

needed and saw that the area Hawkins had told him he would be examining already been 

checked. (Tr. 44-45). While he was there, no one talked about the examination. (Tr. 45). 

11 Tanya McCullough appeared at hearing and testified for Respondent. (Tr. 81). At the 

time of the hearing and in September 2013, McCullough was the manager of human resources 

for Respondent. (Tr. 81). In that capacity she was responsible for contract administration, 

attendance control, employee discipline, hiring benefits, and other duties. (Tr. 81). 

36 FMSHRC Page 1667
Union Secretary and safety committee member. (Tr. 47-48). He then met with Mike Jones, 

Hawkins, and another human resources official (not McCullough). (Tr. 49, 100). At the 

meeting, they told Overfield that he was fired. (Tr. 49). The union did not say anything on his 

behalf but they told him to plead for his job or a last chance agreement.12 (Tr. 49). The request 

was denied by Mike Jones and Hawkins. (Tr. 49). However, after speaking with the union, 

Respondent allowed Overfield to resign instead of being fired. (Tr. 51). Human resources 

drafted the resignation letter, Overfield signed and dated it on September 30, 2013, and it was 

witnessed by Steve Jones. (GX-2, Tr. 50-51). Overfield did not feel like he had any options 

because if he signed he got unemployment and a positive recommendation, but if he did not sign 

he would be terminated and his unemployment would be denied. (Tr. 51-52). 

When Overfield signed the resignation letter, he believed he had been discriminated 

against and went to a lawyer about the issue. (Tr. 61-63). He contacted his attorney, Gary 

Gibbs, seeking legal advice but Gibbs did not represent miners in discrimination and wrongful 

termination proceedings. (Tr. 52-53). Gibbs referred Overfield to Amy Zachary but he was 

never able to meet with her. (Tr. 53, 62). She cancelled their first meeting at the end of October 

and later informed him that she no longer worked discrimination cases. (Tr. 53). He then spoke 

with attorneys in Evansville in December or January but they required a $2,500.00 retainer so he 

did not hire them. (Tr. 62-63). He considered other attorneys in Louisville. (Tr. 63). None of 

the attorneys Overfield spoke to suggested that he contact MSHA. (Tr. 55). Overfield did not 

approach MSHA because he did not know that he could. (Tr. 53, 55). In April, Overfield heard 

about a case involving David Woods and decided to call MSHA. (Tr. 53-54, 56). It was 

probably only one day between hearing about Woods’ case and the filing of Overfield’s 

complaint. (Tr. 56). 

After his resignation, Overfield filed for unemployment benefits in Kentucky. (Tr. 63). 

Under the reason for the application he stated he was forced to resign because of a mental health 

crisis. (Tr. 63-64). He did not tell the unemployment office that he was discriminated against 

because he did not think it was relevant and because the mental health reason was on the one 

given by Respondent. (Tr. 64). Further, the form was very basic. (Tr. 64-65). 

Overfield conceded that he attended annual refresher training in March. (Tr. 54). This 

occurred twice a year. (Tr. 54, 61, 105). During those trainings workers were instructed about 

miners’ rights. (Tr. 54, 61, 105). Overfield testified that he did not recall learning about his 

right to go to MSHA with a discrimination complaint. (Tr. 54, 61). Randy Glen Duncan 

testified that the right to go to MSHA with a discrimination complaint was included in 

Respondent’s miners’ rights training. 13 (Tr. 106). However, Duncan was not sure if he had 

spoken with Overfield about miners’ rights or even if Overfield was present for the training. (Tr. 

107). He never told Overfield personally that if he was discriminated against, he should contact 

MSHA; that was the instructors’ job. (Tr. 107). Duncan could not say how much time was 

 12 According to Overfield, a last chance agreement is a six month to one year period 

where a miner keeps his job but can be terminated for any run-ins with management. (Tr. 49). 

13 Randy Duncan appeared at hearing and testified for Respondent. (Tr. 103). At all 

relevant times he was safety manager with Patriot Coal, at Highland 9 mine. (Tr. 103-104). 

36 FMSHRC Page 1668
devoted to miners’ rights in the training, but he knew it was usually covered before lunch as part 

of the safety meeting. (Tr. 108). In addition to the training, Duncan testified that MSHA 

regularly handed out miners’ rights information and that the information, along with a phone 

number, was posted on a board at the mine. (Tr. 105-106). The discrimination protections 

were well known throughout the mining industry. (Tr. 106). 

Back at the mine, on May 6 between 11:00 and 12:00, one of the floors of the Camp 9 

prep plant collapsed. (Tr. 104). The Camp 9 prep plant is where the coal mined at Highland #9 

is sent from underground to be cleaned and shipped to the terminal. (Tr. 104). The plant was 

idled from after MSHA inspector Coburn issued a (j) order (RX-F). (Tr. 104-105). With the 

prep plant down, coal production was impossible. (Tr. 83-84). Respondent continued to mine 

coal until May 9 and then, on the 10th the mine idled. (Tr. 84-85, 105). By May 12, no one was 

working. (Tr. 84). 

On May 9, mine management personnel met with Steve Jones, the UMWA International 

District Representative, and Steve Earle, the International District Vice President and discuss 

how to get the employees through the layoff during the idle period. (Tr. 82-84, 100). (RX-A). 

(Tr. 82-83). Respondent and the UMWA made an agreement that they would retain the most 

senior employees in their respective job title during the period (RX-A). (Tr. 84, 86). 

Respondent determined the number of employees it still needed in each job title and then kept 

the most senior employees in each classification. (Tr. 84). Those employees would continue to 

work while the rest were idled. (Tr. 84). The job classification was the one that existed at the 

time of the layoff but the seniority calculation was from the time of hiring, not the time that the 

miner received that job classification. (Tr. 85-86). As operations ramped back up and more 

employees were needed, the same seniority rules would be used for call-back priority. (Tr. 85). 

Seniority and job classification would be the only issues considered during recall. (Tr. 85). At 

the time of this meeting, McCullough was aware that Overfield had filed the complaint, having 

learned of it in April. (Tr. 100). However, she asserted that the outstanding case with Overfield 

was not considered in making the agreement. (Tr. 100). 

On May 12, Respondent had a meeting at Henderson Community college with the union 

and all of the employees. (Tr. 85, 105). Respondent explained that everyone would be off of 

work and then how everyone would be brought back. (Tr. 105). 

According to McCullough, if Overfield still worked for Respondent, he would still be 

laid off. (Tr. 92-93). McCullough reviewed a list of workers classified as mine examiners and 

their seniority date. (Tr. 87). Even though Overfield was not employed in May 2014, he was 

included in the list at the No. 16 spot.14 (Tr. 87-88). Because he was a mine examiner when he 

resigned, that was his classification used for determining the recall. (Tr. 87). The seniority 

ranking was placed automatically onto personnel information sheets based on information in the 

 14 Tavon Polk and Overfield were both hired on the same day, September 20, 2010 (RXC). (Tr. 86). As a result, a drawing was conducted to see who had the higher seniority. (Tr. 86). 

Polk drew the No.1 spot and Overfield the No. 2 spot for callback. (Tr. 86-87). 

36 FMSHRC Page 1669
human resources data bank (RX-D).15 (Tr. 88-90). At the time of the hearing, the ten most 

senior examiners had returned to work while the remaining examiners had not. (RX-E, Tr. 90-

91). At No. 16 in seniority, five more examiners would be reinstated before Overfield. (Tr. 91-

92). For example, Carl Rich was hired on December 16, 2009, before Overfield. (Tr. 90). Rich 

was ranked No. 13 on the seniority list of examiners and would be entitled to reinstatement 

before Overfield. (Tr. 90). 

The personnel information used to determine seniority did not include previous job titles. 

(Tr. 96-97). One miner, David Reynolds, only became a belt examiner on September 25, 2013, 

around the same time Overfield left. (Tr. 97). However, McCullough could not say if Reynolds 

would not have been classified as a belt examiner if Overfield had not left, because Respondent 

added 60 new jobs between September 18 and 25 during a change in schedule. (Tr. 97-98). 

McCullough could not say which examiner was replacing Overfield, because of the change in 

staffing at Respondent’s mine, however someone was replacing him. (Tr. 98-99). It is possible 

that someone would not be on the list if Overfield had not been laid off. (Tr. 99). 

McCullough was familiar with the 2013 Coal Wage Agreement between Respondent and 

the UMWA and was aware that it was binding. (Tr. 93). The contract section regarding 

reduction and realignment allows senior miners to move into another job. (Tr. 93-94). However, 

McCullough believed that this was not a reduction because it was temporary. (Tr. 94). She 

believed the agreement with the UMWA ensured they followed the contract. (Tr. 100). No units 

were shut down due to economic reasons. (Tr. 94). Respondent simply had to idle the mine 

based upon the prep plant. (Tr. 94). If they had taken gone through a reduction, the 390 

employees would have lost their jobs and health insurance in May and been forced to use the 

recall process to bid back into jobs when the mine started back up. (Tr. 94-95). Respondent and 

the UMWA were attempting to retain job titles and allow for extended benefits to minimize 

adverse effects. (Tr. 94-95). 

McCullough also reviewed a list of roof bolters arranged by seniority date (GX-3). (Tr. 

95-96). The list was highlighted for those roof bolters who had returned to work, including one 

with a seniority date of February 7, 2011). (Tr. 96). However, McCullough did not believe that 

this meant Overfield would be senior to the last recalled roof bolter because the agreement 

regarding recall superseded the contract. (Tr. 96). Under the terms of that agreement, it was not 

permissible for Overfield to return to another position, even if he was qualified. (Tr. 92, 101). 

Other employees with seniority over recalled workers have requested to change titled, but the 

call backs were based on seniority and job title, not just seniority. (Tr. 92-93). In fact, 

employees senior to Overfield were laid off despite being qualified to perform other jobs. (Tr. 

101). 

At hearing, Overfield’s mental condition was still not good and he had been depressed 

since he lost his job. (Tr. 54, 58, 60). He had been depressed since he lost his job. (Tr. 54). He 

was unable to see Dr. Mayron or buy his depression medication (Pristiq) because he had lost his 

insurance and could not afford it. (Tr. 54, 58, 60). However, he was taking 30 milligrams of 

 15 The sheet listed the employees’ address, marital status, birth date, hire date, and title. 

(Tr. 88). 

36 FMSHRC Page 1670
morphine twice daily, 10 milligrams of Oxycodone four times daily, and Adderall for attention 

deficit. (Tr. 56, 58-59). He was prescribed to take Adderall twice a day, but he could not afford 

to without insurance. (Tr. 56, 59-60). Instead, he would still take it if he required the ability to 

focus and pay attention. (Tr. 59-60). He had been on the pain medication since 2008 when he 

had the first of three back surgeries. (Tr. 56). The pain medications were generic and less 

expensive. (Tr. 60). This was the same medication he took while working. (Tr. 57). However, 

at hearing he felt that if he could take his medication, he could return to work. (Tr. 77). 

Overfield believed that he was fired because he wrote too many conditions, including pin 

condition, in the book. (Tr. 55). He knew from being pulled aside by Hawkins that Respondent 

was unhappy that he recorded conditions. (Tr. 55). He believed they wanted an examiner who 

was not keen on finding hazards and violations. (Tr. 55). 

Findings and conclusions

A. Timeliness 

Both parties agree to the facts in this matter as it pertains to timeliness. Furthermore, the 

parties agree about the Commission’s framework for determining timeliness. As a result, the 

only issue is the application of that framework to the instant matter. 

Under §105(c)(2) of the Mine Act, a miner alleging discrimination has 60 days from the 

date of the discriminatory action to file a complaint with the Secretary of Labor. 30 U.S.C. 

§815(c)(2). As the parties agree, under settled Commission case law, the 60-day period is not 

jurisdictional. See Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff'd 

mem, 750 F.2d 1093 (D.C. Cir. 1984); and IMCO Services, 4 FMSHRC 2135 (Dec. 1982). 

Instead, a judge is required to review the facts “on a case-by-case basis, taking into account the 

unique circumstances of each situation” in order to determine whether a miner's late filing should 

be excused. Arch of Illinois, 21 FMSHRC 1381, 1386-1387 (Dec. 1999) citing Hollis, supra. To 

that end, a miner's late filing of a discrimination complaint may be excused on the basis of 

justifiable circumstances, including genuine ignorance, mistake, inadvertence, and excusable 

neglect. Phillips Dodge Morenci, 18 FMSHRC 1918, 1921-1922 (Nov. 1996) citing Schulte v. 

Lizza Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984). A consideration in determining whether a delay 

was justifiable is whether the operator suffered “material legal prejudice.” See Arch of Illinois, 

supra; see also Nantz v. Nally & Hamilton, Enters., 16 FMSHRC 2208, 2214-2215 (Nov. 1994)

overruled on other grounds Secretary of Labor on behalf of Poddey v. Tanglewood Energy, Inc., 

18 FMSHRC 1315, 1325 (Aug. 1996); Boswell v. National Cement Co., 14 FMSHRC 253, 257 

(Feb. 1992); and Lizza Indus., 6 FMSHRC at 13. Even a lengthy delay beyond the 60-day period 

can be permissible when it is justified by the circumstances and without prejudice to the 

operator. See e.g. Secretary of Labor on behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 905-

06 (June 1986) (two year delay); Nantz, 16 FMSHRC at 2214-2215 (Nov. 1994) (four month 

delay). 

In the instant matter, the parties agree that Overfield ceased his employment with 

Respondent on September 30, 2013. (GX-2, Tr. 50-51). Therefore, in order for his complaint to 

36 FMSHRC Page 1671
be considered timely, Overfield was required to file with the Secretary no later than November 

29, 2013. However, Overfield did not file his discrimination complaint until April 3, 2014, 185 

days after the adverse employment activity (and therefore, 125 days late for the 60-day deadline). 

(GX-1, Tr. 53-54, 56). 

I find that Overfield’s failure to file his discrimination complaint until April 4, 2014 was 

the result of genuine ignorance, mistake, inadvertence, or excusable neglect. I credit Overfield’s 

testimony that he did not file with the Secretary because he did not know that he had that option. 

(Tr. 53, 55). While he conceded that he attended safety training that included miners’ rights 

instruction, he stated that could not recall hearing that he had the right to bring discrimination 

complaints to MSHA. (Tr. 54, 61). While evidence suggested that some information on miners’ 

rights was posted, nothing shows that Overfield had actual knowledge of his rights but failed to 

act. In fact, Respondent’s witness, Duncan, could not state whether Overfield had actually 

received this information. (Tr. 107). 

Overfield’s genuine ignorance about the Mine Act’s protective provisions is shown by his 

subsequent action. Specifically, he filed for his unemployment benefits and immediately sought 

out several attorneys in the field of wrongful termination and workplace discrimination. (Tr. 52-

53, 61-63). Unfortunately for Overfield, none of these attorneys were aware of the Mine Act’s 

provisions. (Tr. 52-53, 61-63). The Commission has considered the pursuit of related 

complaints when determining whether a delay is justifiable. See Arch of Illinois, 21 FMSHRC at 

1387). The ignorance of these attorneys should not form a basis for punishing Overfield. The 

evidence shows that Overfield did not “sleep on his rights” but instead actively sought legal 

redress for the alleged wrong. He was simply genuinely unsure of how to do so. As a result, I 

find that Overfield’s delay was justifiable. 

I further find that no evidence was presented that indicated that Respondent suffered any 

prejudice from the delay. On the contrary, Respondent was able to vigorously defend its position 

through witnesses and documentary evidence without any perceivable hindrance. 

In light of these circumstances, I find that a dismissal of Overfield’s claim would be 

inappropriate, regardless of the delay. 

B. Discrimination Claim 

 As noted, supra, at the close of hearing Respondent essentially conceded the miner’s 

complaint was not frivolously brought. (Tr. 110). Therefore, only a brief discussion of this issue 

is deemed warranted. To support a temporary reinstatement there must be protected activity with 

a connection, or nexus, to an adverse employment action. 

 In the instant matter, Overfield testified that in his capacity as mine examiner, he often 

reported hazards and violations in the record books on the surface. (Tr. 18-20, 29-31). 

Specifically, he testified that he reported broken, missing, or overly spaced roof bolts and other, 

similar conditions. (Tr. 20, 29). Therefore, there is evidence of protected activity. 

36 FMSHRC Page 1672
 Further, Overfield testified that he was pressured to resign on September 30, 2013. (Tr. 

51-52). According to the Act and well-settled Commission precedent, suffering a discharge or a 

demotion is an adverse employment action. 30 USC ' 815(c)(1); see also Moses v. Whitley Dev. 

Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985). Constructive 

discharge is an adverse employment action for the purposes of the Act. See e.g., Simpson v. 

FMSHRC, 842 F.2d 453, 461 (D.C. Cir. 1988); and Nantz, 16 FMSHRC at 2210. Therefore, 

there is evidence of an adverse action. 

In light of the evidence of protected activity and the evidence of adverse action, the 

question turns to whether there is a nexus between those two factors. The Commission 

recognizes that direct proof of actual knowledge is often not available and that the nexus 

between protected activity and the alleged discrimination must often be drawn by inference from 

circumstantial evidence rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 

2510. The Commission has identified several circumstantial indicia of discriminatory intent, 

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

activity; (3) coincidence in time between the protected activity and the adverse action; and (4) 

disparate treatment of the complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see 

also, Phelps Dodge Corp., 3 FMSHRC at 2510. 

With respect to hostility or animus, Overfield testified that members of management 

asked him to cease making safety complaints and to refrain from reporting conditions in the 

record books. (Tr. 31, 34-36, 43). Further, he testified that members of management would give 

him a hard time about his zeal for safety. (Tr. 35-36, 43, 69-71). With respect to knowledge, 

Overfield testified that he reported safety conditions in the record books reviewed by 

management and that management referenced his complaints in ordering him to “back off.” (Tr. 

31, 34-36, 43, 69-71). With respect to the coincidence in time, Overfield testified he made these 

complaints at all times during which he was a mine examiner from November 2011 to May 

2012, and again from November 2012 until his discharge on September 30, 2013. (Tr. 18-20, 

29-31). Finally, the Secretary presented no evidence of disparate treatment. Considering all of 

the factors together, there appears to be some evidence of nexus between the protected activity 

and the adverse employment action. 

Respondent argued that it gave Overfield the choice between signing a letter of 

resignation because he had failed to follow the proper procedures for sick leave and missed five 

unexcused days. (Tr. 44-45, 51-52). However, given the low evidentiary bar at this level of the 

proceeding, Respondent conceded that Overfield’s discrimination claim was not frivolously 

brought. In light of this fact, and the evidence summarized above, I find that Overfield’s 

discrimination complaint was not frivolously brought. As a result, I find that temporary 

reinstatement is appropriate. 

C. Tolling 

While conceding that Overfield’s discrimination complaint had some merit, Respondent 

argues that the temporary reinstatement should be tolled in light of intervening circumstances. 

Within the scope of a temporary reinstatement proceeding, the Commission has permitted a 

36 FMSHRC Page 1673
limited inquiry to determine whether the obligation to reinstate a miner may be tolled. Ratliff v. 

Cobra Natural Resources, LLC, 35 FMSHRC 394, *3 (Feb. 2013). The Commission recognized 

that “the occurrence of certain events, such as a layoff for economic reasons, may toll an 

operator’s reinstatement obligation.” Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 1000 

(May 2012)(citations omitted). When an operator seeks to toll a temporary reinstatement order 

based on a subsequent layoff, it bears the burden to demonstrate by a preponderance of the 

evidence that “the layoff properly included” the miner who filed the complaint of discrimination. 

Ratliff, 35 FMSHRC at *3-4 (citing Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1055 

(Oct. 2009)). However, if the objectivity of the layoff as applied by the miner is called into 

question during the temporary reinstatement proceeding, the judge must apply the “not 

frivolously brought” standard from §105(c)(2) of the Act to the miner’s claim. Id. The 

Commission further clarified that under the “not frivolously brought” standard, the Secretary’s 

burden of proof was “limited to establishing facts which could support the claim that any 

inclusion of the complaining miner in the layoff might have been based in part on the miner’s 

protected activity.” Rodriguez v. C.R. Meyer and Sons Co., 35 FMSHRC 1183, *4 (May 

2013)(emphasis in original). The Commission explained that the lower burden was appropriate 

because “the layoff itself, as a termination of employment, must at that point be evaluated as a 

potentially wrongful adverse action.” Id. Therefore, if the claim that the layoff arose at least in 

part from protected activity is not frivolous, then the reinstatement should not be tolled. Ratliff, 

35 FMSHRC at *3-4. If the Secretary then fails to establish any possibility that the miner’s 

inclusion in the layoff was motivated by the miner’s protected activity, then the burden reverts to 

the operator to show, by a preponderance of evidence, that tolling was justified. Id. 

 Therefore the Commission requires that when an operator raises the issue of tolling in a 

temporary reinstatement proceeding the judge must first determine whether the Secretary has 

“called into question” the objectivity of the layoff. If the Secretary has not called that objectivity 

into question, then the operator must prove by a preponderance of the evidence that the miner 

was properly included in the layoff. If the Secretary has called the objectivity of the layoff into 

question, then the judge must determine if facts exist which could support a claim that the layoff 

was based in part on the miner’s protected activity. If the Secretary is able to present a nonfrivolous argument regarding the discriminatory motivation of the layoff, then the tolling is 

inappropriate. However, if the Secretary is only able to provide frivolous arguments as to the 

discriminatory motivation of the layoff, then the Respondent must only prove by a 

preponderance of the evidence that the miner was properly included in the layoff. 

 In the instant proceeding, Respondent argued that the temporary reinstatement should be 

tolled because Overfield would have been included in a layoff that occurred on May 10, 2014. 

Specifically, it noted that on May 6, 2014, a floor in the mine’s preparation plant collapsed, 

necessitating a complete shutdown of the mine on May 10, 2014. (Tr. 84-85, 104-105). 

Respondent and the UMWA developed a call-back procedure from that layoff based on seniority 

and job title. (Tr. 82-84, 100). Miners were brought back to the mine based on their job titles at 

the time of layoff and their overall seniority at the mine. (Tr. 84-86). Respondent argues that 

under the terms of that agreement with the union, Overfield would still be laid off as there are 

five examiners with more seniority who had not yet been returned to work. (Tr. 92-93). 

Therefore, the tolling issue was raised. 

36 FMSHRC Page 1674
 Respondent argued that the Secretary failed to call into question the objectivity of the 

layoff. (Tr. 119). The Commission has not specifically defined what actions are necessary to 

“call into question” the objectivity of a layoff. In the instant matter, however, I find that the 

Secretary’s actions were sufficient to call into question the objectivity of the layoff. There are 

several reasons for this determination. Perhaps most importantly, Secretary’s counsel 

affirmatively stated that the Secretary wished to challenge the layoff’s objectivity. (Tr. 119-

120). In addition, the Secretary’s counsel cross-examined Respondent’s witnesses regarding the 

layoff and also introduced documentary evidence during that cross-examination. Given the fact 

that the layoff occurred three days before the Discrimination Complaint was filed (and the callback procedure was announced the day before it was filed) and the Complaint was filed without 

knowledge of the layoff, there was no reasonable time for the Secretary to “call into question” 

the objectivity of the layoff before hearing. (Tr. GX-1, 50-51, 84-85, 105). In fact, Secretary’s 

counsel only received copies of Respondent’s documentation regarding the layoff at the hearing. 

(Tr. 79-81). Furthermore, even if the Secretary had knowledge of the layoff, the duty to “call 

into question” the objectivity of the layoff only arises when Respondent asserts that the 

reinstatement should be tolled. Therefore, the total record established that the Secretary 

reasonably called into question the objectivity of the layoff. 

 Having found that the Secretary “called into question” the objectivity of the layoff, the 

next issue is whether the Secretary presented facts which could support a claim that the miner’s 

inclusion in the layoff was based in part on the miner’s protected activity. In the instant matter, 

it appears that all the miners at the mine were laid off for several days after the collapse of the 

prep plant. (Tr. 83-85, 105). The issue here is whether facts exist that could support a claim that 

Respondent’s failure to call Overfield back to work since such time was the result of his alleged 

protected activity. I find that such facts exist. Specifically, Respondent’s witnesses testified that 

the layoff and callback procedure used at the mine differed in some ways from the collective 

bargaining agreement as it relates to reduction and re-alignment. (Tr. 92-94, 96, 101). If the 

collective bargaining agreement sections regarding reduction and re-alignment were followed, 

Overfield could have bid for the roof bolter position. (Tr. 93-94). At the time of the hearing a 

roof bolter position was filled by a miner with less seniority than Overfield. (Tr. 96). Further, 

McCullough testified that when Respondent and the union were negotiating this modified callback procedure, that Respondent was aware of Overfield’s discrimination complaint.16 (Tr. 100). 

As discussed supra, Respondent was aware of Overfield’s protected activity. (Tr. 31, 34-36, 43, 

69-71). Therefore, I find that the Secretary has raised a non-frivolous issue as to whether the 

call-back procedure was designed in part to prevent Overfield from being called back because of 

his protected activity. 

 Respondent’s witnesses argued at hearing that Overfield was not considered in creating 

the call-back procedure. (Tr. 100). McCullough argued that the reduction and re-alignment 

sections of the collective bargaining agreement did not apply in this matter. (Tr. 94). Further, 

she stated that the motivation in creating the call-back procedure used was to protect the miners’ 

benefits during the layoff. (Tr. 94-95). All of these assertions could very well be true. 

 16 McCullough’s inability to answer what specific miner had filled Overfield’s position 

raised further questions as to the objectivity of the miner’s continued inclusion in the layoff. 

(See also Secretary’s cross-examination at Tr. 98-100). 

36 FMSHRC Page 1675
However, at this preliminary stage, it would be inappropriate to consider the conflicting evidence 

regarding the call back procedure. It is sufficient that the facts could support a claim that 

Respondent designed the call back procedure to prevent Overfield from returning to the mine. A 

full determination of the circumstances surrounding the layoff and call back will be made at the 

hearing on the merits. 

 Therefore, after careful review of the total record and above-cited case law, I find that the 

Secretary’s claim was not frivolous that Overfield may not have been called back to work from 

layoff due to, in part, his past safety complaints. The Secretary mustered sufficient facts that 

could support the claim that any continuing inclusion of Overfield in the layoff following the 

shutdown may have been based in part on his protected activity. Therefore, given the burden 

would not in such case revert to the operator to show, by a preponderance of the evidence, that 

tolling was justified, I need not resolve whether Respondent proved that Overfield was properly 

laid off. Instead, I find that tolling is inappropriate in this matter. Therefore, immediate 

temporary reinstatement is warranted. 

ORDER

Based on the above findings, the Secretary=s Application for Temporary Reinstatement is 

granted. Accordingly, Respondent is ORDERED to provide immediate reinstatement to 

Overfield, as a mine examiner, at the same rate of pay, for the same number of hours worked, 

and with the same benefits, as at the time of his discharge. 

 /s/ John Kent Lewis 

John Kent Lewis 

 Administrative Law Judge 

Distribution: (Certified Mail) 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, One Paragon Centre, 2525 Harrodsburg Rd., 

Suite 300, Lexington, KY 40504 

36 FMSHRC Page 1676
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 19, 2014

BIG RIDGE, INC.,

Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

Respondent

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

Petitioner

v.

BIG RIDGE, INC.,

Respondent

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CONTEST PROCEEDINGS

Docket No. LAKE 2012-453-R 

Order No. 8431667; 03/06/2012

Docket No. LAKE 2012-454-R 

Citation No. 8431668; 03/06/2012

Docket No. LAKE 2012-455-R 

Citation No. 8431669; 03/06/2012

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2012-174

A.C. No. 11-03054-270696-02

Docket No. LAKE 2012-175

A.C. No. 11-03054-270696-03

Docket No. LAKE 2012-262

A.C. No. 11-03054-273420-02

Docket No. LAKE 2012-263

A.C. No. 11-03054-273420-02

Docket No. LAKE 2011-349

A.C. No. 11-03054-242336-02

Mine: Willow Lake Portal

Appearances: Letha A. Miller, Esq., and Breyana Penn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado for Petitioner

Arthur M. Wolfson, Esq., and Jason P. Webb, Esq., Jackson Kelly, PLLC,

Pittsburgh, Pennsylvania for Respondent 

Before: Judge McCarthy

36 FMSHRC Page 1677
1

 At the outset of the hearing, Respondent withdrew its Notices of Contests of Order No.

8431667 and Citation Nos. 8431668 and 8431669. Tr. 7. In addition, the parties settled the

majority of the citations and orders at issue in the above-referenced dockets prior to hearing,

including all of Docket No. LAKE 2011-349. The settlement terms were submitted to the

undersigned as Joint Exhibit 2. Tr. 12. I have reviewed the parties’ joint settlement motion

made on the record and I approve the parties’ settlement agreement set forth in Joint Exhibit 2 as

consistent with the criteria set forth in section 110(i) of the Act and in furtherance of the public

interest. 

2

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the

witnesses, their interests in this matter, the inherent probability of their testimony in light of

other events, corroboration or lack of corroboration for testimony given, and consistency or lack

of consistency of testimony. 

DECISION AND ORDER

I. Statement of the Case

This case is before me upon three Notices of Contest filed by Contestant Big Ridge, Inc.

against the Secretary of Labor and five Petitions for Assessment of Civil Penalties filed by the

Secretary against Big Ridge, Inc. (Respondent) pursuant to sections 105(d) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the “Mine Act”), as amended.1 Twelve

violations of mandatory safety standards remain at issue from four dockets. They involve nine

104(a)(1) citations and three 104(d)(2) orders issued by various MSHA inspectors between

August 2010 and October 2011. P. Exs. 1, 4, 6, 9, 10, 12, 21, 32, 34, 38, 40, 43. The Secretary

has proposed specially assessed penalties for six of the twelve unresolved citations/orders. 

Respondent contests the alleged unwarrantable failure, significant and substantial (S&S), gravity

and/or negligence designations, and the validity of the proposed civil penalties. 

A hearing was held in Carbondale, Illinois. The parties agreed to conduct several “mini

trials” on each unresolved citation/order, elected to waive opening statements, and introduced

testimony and documentary evidence, with witnesses sequestered. Tr. 13-24. 

Based on the entire record, including the parties’ lengthy post-hearing briefs and my

observation of the demeanor of the witnesses,2 I first evaluate citations/orders for roof control,

accumulations of combustible material, and maintenance of the incombustibility content of rock

dust. I then evaluate the ventilation control, belt maintenance, and accumulation citations

written during an impact inspection in which Respondent allegedly was denied its walkaround

rights under section 103(f) of the Mine Act. Finally, I affirm my bench decision vacating on

credibility grounds an alleged unwarrantable order for failure to perform a pre-shift examination

and certify that the examination had been made. 

36 FMSHRC Page 1678
II. Basic Legal Principles 

A. Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and

substantial nature. An S&S violation is a violation “of such nature as could significantly and

substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C.

§ 814(d). A violation is properly designated S&S, “if, based upon the particular facts

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

result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3

FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC

1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power

Co. v Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that often is the most difficult to apply. The

element is established only if the Secretary proves “a reasonable likelihood the hazard

contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., 7

FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts

surrounding the violation and must be made in the context of continued normal mining

operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., 6

FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that

the violation itself will cause injury.” Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct.

2011) (quoting Musser Engineering, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).

The S&S nature of a violation and the gravity of a violation are not synonymous. The

Commission has pointed out that the “focus of the seriousness of the violation is not necessarily

on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather

on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.

1996). The Commission has 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., 6 FMSHRC at 1575. With respect to citations

or orders alleging an accumulation of combustible materials, the question is whether there is a

confluence of factors that make an injury-producing fire and/or explosion reasonably likely. 

Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-971 (May 1990) (“UP&L”). 

Factors that have been considered include the extent of the accumulation, possible ignition

sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at

970-71; Texasgulf, 10 FMSHRC at 500-03. 

36 FMSHRC Page 1679
B. Negligence and Unwarrantable Failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

Negligence is 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. Under the Mine Act, an operator is

held to a high standard of care. A mine operator is required to be on

the alert for conditions and practices in the mine that affect the safety

or health of miners and to take steps necessary to correct or prevent

hazardous conditions or practices. The failure to exercise a high

standard of care constitutes negligence.

30 C.F.R. § 100.3(d). 

The Commission has defined an unwarrantable failure as aggravated conduct constituting

more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). 

Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional

misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9

FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d at 136. 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,

e.g., Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations

are relevant to an unwarrantable failure determination to the extent that they serve to put an

operator on notice that greater efforts are necessary for compliance with a standard. Peabody

Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

C. Penalty Assessment Principles

The Commission outlined the parameters of its responsibility for assessing civil penalties

in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the Commission’s authority 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

“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) and 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

36 FMSHRC Page 1680
3

 Under the regulations, penalty points are assigned based on the size of the operator and

(continued...)

C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n

assessing civil monetary penalties, the Commission [ALJ] shall

consider” six statutory penalty criteria: [1] the operator’s history of

previous violations, [2] the appropriateness of such penalty to the size

of the business of the operator charged, [3] whether the operator was

negligent, [4] the effect of the operator’s ability to continue in

business, [5] the gravity of the violations, and [6] the demonstrated

good faith of the person charged in attempting to achieve rapid

compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)).

In keeping with this statutory requirement, the Commission has held that “findings of fact

on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC

287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty

assessment for a particular violation is an exercise of discretion, which is bounded by proper

consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera

Green, 22 FMSHRC 616, 620 (May 2000). 

In exercising this discretion, the Commission has reiterated that a judge is not bound by

the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug.

2008). In addition, the de novo assessment of civil penalties does not require “that equal weight

must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19

FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty determination “substantially

diverge[s] from those originally proposed, it behooves the . . . judge[] to provide a sufficient

explanation of the bases underlying the penalties assessed.” Spartan Mining, 30 FMSHRC at

699. Otherwise, without an explanation for such a divergence, the “credibility of the

administrative scheme providing for the increase or lowering of penalties after contest may be

jeopardized by an appearance of arbitrariness.” Sellersburg, 5 FMSHRC at 293. 

As Senior Judge Zielinski recently explained in American Coal Co., 35 FMSHRC ___,

slip op at 54-55, No. LAKE 2008-666 (May 19, 2014), the purpose of explaining significant

deviations from proposed penalties is to avoid the appearance of arbitrariness. See Sellersburg

Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Similarly

situated operators, determined to be liable for violations with similar gravity, negligence and

other penalty criteria, ideally should be assessed similar penalties. Absent some guideline,

however, a judge has no quantitative reference point to aid in specifying a penalty within the

current statutory/regulatory range of $100 to $70,000. The Secretary’s regulations for

determination of a penalty amount by a regular or special assessment, 30 C.F.R. §§ 100.3, 100.5,

take into consideration the statutory factors that the Commission is obligated to consider under

section 110(i) of the Act.3

 The product of these assessment formulae provide a useful reference

36 FMSHRC Page 1681
3

(...continued)

the operator’s controlling entity; the operator’s history of previous violations; the operator’s

history of repeat violations of the same standard; the degree of the operator’s negligence; and,

the gravity of the violation, including the likelihood of an occurrence of an event against which a

standard is directed, the severity of injury or illness if the event were to occur, and the number of

persons potentially affected if the event were to occur. A proposed penalty is determined by

applying the total of the points assigned to a “Penalty Conversion Table,” which specifies

proposed penalties ranging from $112 for 60 or fewer points, up to the statutory/regulatory

maximum of $70,000 for 144 or more points for non-flagrant citations and orders. That figure

may then be adjusted by reducing it by 10% if the operator demonstrated good faith in abating

the violation. 30 C.F.R. § 100.3(f). A further reduction may occur if the operator can

demonstrate to MSHA’s District Manager that the penalty will adversely affect its ability to

continue in business. 30 C.F.R. § 100.3(h). 

point, which promotes consistency in the imposition of penalties by Commission judges. See

Magruder Limestone Co., 35 FMSHRC 1385, 1411 (May 2013) (ALJ) (regular assessment

regulations provide a helpful guide for assessing an appropriate penalty that can be applied

consistently). 

Accordingly, in determining penalties for the litigated violations, the penalty produced by

application of the Secretary’s assessment formula will be used as a reference point, and adjusted

depending on the particular findings with respect to the statutory penalty criteria. The tables and

charts in the regulations provide a limited number of categories for some factors. For example,

the table for operator’s negligence consists of five gradations, ranging from “No negligence” to

“Reckless disregard.” 30 C.F.R. § 100.3(d). In reality, however, the degree of an operator’s

negligence will fall on a continuum, dictating that adjustments will generally be required. Other

unique circumstances may dictate lower or higher penalties. Violations involving extreme

gravity and/or gross negligence, or other unique aggravating circumstances may dictate

substantially higher penalty assessments. A party seeking a reduced or an enhanced penalty

must assume the burden of producing evidence sufficient to justify any requested adjustment. 

Where the Secretary urges a penalty higher than that derived by reference to the

assessment process set forth in 30 C.F.R. § 100.3, he will have the burden of establishing the

appropriateness of the higher penalty, based upon the statutory penalty criteria. The undersigned

recognizes that the Secretary has developed, pursuant to his authority under 30 C.F.R. § 100.5, a

process for the special assessment of proposed penalties. MSHA, OFFICE OF ASSESSMENTS,

ACCOUNTABILITY, SPECIAL ENFORCEMENT & INVESTIGATIONS, SPECIAL ASSESSMENT GENERAL

PROCEDURES (Sep. 7, 2011), http://www.msha.gov/PROGRAMS/assess/SpecialAssess/

SpecialAssessments2011.pdf. These procedures, however, have not been codified as binding

regulations, and thus, have not been subject to notice and comment rule making, unlike the

normal assessment procedures in section 100.3. Where the Secretary has provided adequate

documentation of how he determined the specially assessed penalty and is able to demonstrate

the appropriateness of proposing a specially assessed penalty, the guidance in the General

Procedures may also provide a helpful guide for assessing an appropriate penalty. 

36 FMSHRC Page 1682
The Secretary has proposed a total penalty of $274,153 for the twelve citations/orders

remaining at issue. For the reasons explained herein, I assess a total penalty of $116,622.

III. Stipulated Facts

The parties stipulated to the following facts at hearing. 

1. At all times relevant to these proceedings, Respondent was engaged in

underground bituminous coal mining operations at Willow Lake Portal (Mine ID

11-03054) in Equality, Illinois. 

2. Respondent’s mining operations affect interstate commerce.

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

Act of 1977. 30 U.S.C. §§ et seq. (the “Mine Act”).

4. Respondent is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803

(d), at Willow Lake Portal where the Citations being contested in the proceedings

were issued.

 

5. The Administrative Law Judge has jurisdiction over these proceedings, pursuant

to § 105 of the Act.

 

6. The parties stipulate to the authenticity of their exhibits, but not to the relevance

or truth of the matters asserted therein.

 

7. The individuals whose signatures appear in Block 22 of the Citations at issue in

these proceedings are all authorized representatives of the United States Secretary

of Labor, assigned to MSHA’s Benton, Illinois and St. Clairsville, Ohio Field

Offices at the time of the inspections at issue. All six inspectors were acting in

official capacity when the Citations at issue were issued.

 

8. The Citations at issue in these proceedings were properly served upon Big Ridge,

Inc. as required by the Mine Act.

 

9. The Citations at issue in these proceedings may be admitted into evidence for the

purpose of establishing their issuance, but not for the truthfulness or relevancy of

any statements asserted therein.

 

10. The proposed penalties will not affect Respondent’s ability to remain in business.

 

11. The certified copies of the MSHA Assessed Violations History reflect the history

of the citation issuance at the mine for fifteen months prior to the date of the

Citations and may be admitted into evidence without objection by Respondent. 

36 FMSHRC Page 1683
 

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

 

13. Big Ridge, Inc. is a large operator and Willow Lake Portal is a large mine.

 

14. The parties have settled Docket LAKE 2011-349; and citations from Docket

LAKE 2012-174, LAKE 2012-175, LAKE 2012-262 and LAKE 2012-263. The

specific terms are outlined in Joint Exhibit 2.

Jt. Ex. 1; see also Tr. 11-12. 

IV. Factual Background

Respondent operates the Willow Lake Portal Mine (“WLPM”), an underground,

bituminous coal mine, located in Equality, Illinois. Jt. Ex. 1, para 1; Tr. 30-33. The coal is

mined via perimeter or room and pillar mining. Jt. Ex. 1; Tr. 434. The mine is large and made

up of miles of belt and air courses. Several MSHA inspectors work on a regular basis for about

three months to complete each quarterly inspection. Jt. Ex. 1; Tr. 31-32. 

WLPM is a “gassy” mine and liberates in excess of 1,000,000 cubic feet of methane

every 24 hours. Inspectors regularly travel the mine to perform five-day spot ventilation

inspections. Tr. 31, 510. 

At material times herein, the WLPM operated on three shifts. The day shift ran from

7:00 a.m. until 3:00 p.m. The afternoon shift started at 3:00 p.m. and ended at 11:00 p.m. The

midnight or graveyard shift started at 11:00 p.m. and continued until 7:00 a.m. Tr. 150-51. 

WLPM has a significant history of roof falls and the inspectors in this case had

knowledge that a number of unintentional roof falls had occurred before their inspections. Tr.

188-89, 207, 326-27, 330-31; P. Exs. 28-30, 61. Three of the citations at issue concern alleged

roof control violations of §§ 75.202(a), 75.202(b) and 75.220(a)(1). They were designated as

S&S violations, with high or moderate negligence. Two of these three citations were issued in

August 2010 by inspector James Preece and one was issued in June 2011 by inspector James

Rusher. The timing is significant because of WLPM’s recent history of roof control problems

and because MSHA repeatedly notified Respondent that it needed to make greater efforts to

comply with roof control standards after it implemented its Rules To Live By (“RTLB”)

program in March 2010. Tr. 193-94; P. Ex. 26. The RTLB fatality prevention program

specifically included sections 75.202 and 75.220(a)(1), the first two standards on the list. Tr.

193-94; P. Ex. 26. 

MSHA inspectors specifically discussed the RTLB program and Respondent’s need to

comply with the roof control standards with Respondent’s management at closeout meetings

immediately prior to the roof control citations at issue. P. Exs. 28-29; Tr. 62-63, 192-93. The

36 FMSHRC Page 1684
first closeout meeting occurred on March 29, 2010. The closeout document that was circulated

gave Respondent the following notice: 

Better focus on the “Rules To Live By” standards especially since

MSHA is holding the mine operator more accountable for violation

of the identified standards with stronger enforcement. 

P. Ex. 28, at 3; Tr. 192-93. The document indicates that section 75.202(a) was cited twenty-one

times and section 75.220(a)(1) was cited ten times that quarter. P. Ex. 28, at 17. Thereafter, the

June 2010 closeout document indicated that roof control violations had decreased that quarter,

but gave the same notice regarding enhanced enforcement under the RTLB program. P. Ex. 29,

at 2-3. 

Inspector Preece found several roof violations in August 2010. Preece issued Citations

Nos. 8030991 and 8030992 alleging violations of § 75.220(a) and § 75.202(b), respectively. See

P. Exs. 4, 6. The day before he issued said citations, Preece issued two other roof control

citations, one for violation of §75.220(a) and one for violation of § 75.203(e)(2). R. Ex. 85, at

14; Tr. 237-45.

Thereafter, on September 24, 2011, another closeout meeting occurred. P. Ex. 30. The

closeout document indicated that twenty-five citations were issued for section 75.202(a)

violations during the quarter. It further stated:

Roof and Ribs - roof control violations are high here. Problems need

to be addressed before we have to take care of them.

P. Ex. 30, at 9. 

For the inspection quarter from July through September 2010, there were twenty-five

section 75.202(a) violations, the second most violated standard at the mine that quarter. P. Ex.

30, at 5. Furthermore, Respondent was aware that its mine had a significant history of roof falls

and falling rock in draw rock areas. Between February and August 2010, Respondent reported

six roof falls that resulted in injuries and several others that were reported as accidents without

injury. P. Ex. 61. 

On June 24, 2011, inspector James Rusher issued one of the roof control citations at

issue, Citation 8427546, alleging a violation of § 75.202(a). P. Ex. 21. The record establishes

that 140 section 75.202(a) citations were served on Respondent in the two years prior to June 24,

2011. Id.; Tr. at 328, 346. Furthermore, in the six months prior to the citation issued by Rusher

in June 2011, nine reportable roof falls resulted in two injuries. P. Ex. 61. 

The record also establishes that Respondent had significant problems with

accumulations, as evidenced by recurring citations, orders, and discussions with MSHA

personnel. In the two years prior to Preece’s August 2010 inspections, Respondent was cited for

36 FMSHRC Page 1685
4

 Inspector Preece has worked for MSHA since 2000 as an Authorized Representative

(“AR”) of the Secretary. Tr. 25-26. Preece works in the St. Clairsville, Ohio MSHA Field

Office. In August 2010, he inspected the WLPM while on detail. Tr. 30. Before working for

MSHA, Preece worked in the coal mining industry in various job classifications. Tr. 27-28. He

has a Mining Engineering degree from West Virginia Institute of Technology, an Occupational

Development degree from Marshall University, and mine foreman certifications from Ohio and

West Virginia. Tr. 29. 

5

 Section 75.220 states that “[e]ach mine operator shall develop and follow a roof control

plan, approved by the District Manager, that is suitable to the prevailing geological conditions,

and the mining system to be used at the mine. Additional measures shall be taken to protect

persons if unusual hazards are encountered.” 

299 violations of § 75.400. P. Ex. 1; Tr. 66. Although the March 2010 closeout conference

noted a reduction in § 75.400 citations, the June 2010 closeout conference notes emphasized that

§ 75.400 violations had increased again and needed improvement. See P. Exs. 28-30. Even after

Preece issued 104(d)(2) Order No. 8030700 on August 2, 2010. Section 75.400 was the most

cited violation for the third quarter that year. P. Ex. 30. 

V. Findings of Fact and Conclusions of Law 

A. Roof Control Citations Nos. 8030991, 8030992, and 8427546

1. Citation No. 8030991

Respondent does not challenge the violation of section 75.220(a)(1) alleged in Citation

No. 8030991 for failure to follow the MSHA-approved roof control plan. R. Br. 26. Rather,

Respondent challenges the gravity, S&S, and high negligence findings and the appropriateness

of the specially assessed $47,700 penalty. I affirm the violation, as written, but reduce the

negligence to moderate and reduce the specially assessed penalty from $47,000 to $14,700. 

a. The Alleged Violation

During an E01 inspection on August 4, 2010, inspector Preece,4

 accompanied by

Respondent’s safety and compliance manager, Bob Clarida, issued Citation No. 8030991 for a

violation of 30 C.F.R. § 75.220(a)(1). Tr. 173-74; P. Ex. 4.5 Preece determined that Respondent

was not following the MSHA-approved roof control plan because the fender (block of coal)

between the #8 and #9 perimeter cuts on unit 5 measured five-feet three-inches wide, instead of

the six-foot width required in the plan. P. Ex. 4, P. Ex. 5, at 24; Tr. 192, 266. Accordingly,

Preece wrote Citation No. 8030991 alleging the following unlawful condition or practice

The approved roof control plan page 24 was not being complied with

on the 005/005 section. The fender left between the No. 8 and No. 9

perimeter (3+25) cuts measured 5’3”. Visible footprints were

36 FMSHRC Page 1686
6

 Counsel for the Secretary represented at hearing that the citation referenced should be

8030992, discussed below, not 8030991. Tr. 185-86. 

observed where a miner had traveled behind the barricade as

referenced in citation 8030991 . . . .6

P. Ex. 4. 

Preece determined that the violation contributed to the hazard of a roof fall, which was

reasonably likely to cause an injury because miners were traveling in areas that had been mined,

but not supported properly. P. Ex. 4; Tr. 178, 186, 200. Preece determined that the most likely

injury would be a fatal, crushing injury from a roof fall. P. Ex. 4; Tr. 187. Preece also

determined that one person would be affected because ten to twelve people were actively

working on the section, and there were fresh, visible footprints in the area. P. Ex. 4; Tr. 184,

200.

b. Positions of the Parties

Respondent argues that the Secretary adduced no evidence to demonstrate a reasonable

likelihood of a serious injury based on the nine-inch deviation from the plan requirement that the

front of the fender be six feet wide. R. Br. 28 (citing P. Ex. 5, at 24; P. Ex. 8). Respondent also

argues that there is no evidence that the cited condition adversely affected the immediate roof in

the area. Rather, Respondent relies on Clarida’s testimony that the narrow fender did not

compromise roof control, and the roof condition in the area looked “pretty good, normal.” 

Respondent also relies on Preece’s acknowledgment that there were no problems with the roof

bolts, and on compliance manager Todd Grounds’ testimony that roof bolts with cables attached

were installed before the continuous miner made perimeter cuts. R. Br. 28; Tr. 222, 264-65, 276. 

 

In addition, Respondent claims that there was no exposure to the condition. R. Br. 29. 

Respondent notes that the perimeter cuts that created the fender were complete. Id. (citing Tr.

276). According to Respondent, the supplemental roof support would have been removed from

the “fresh air side” of the fender. Therefore, the continuous miner operator would not have been

exposed to the fender while removing supplemental support. Id. (citing Tr. 265). Respondent

further notes that after the cut, the area around the fender was barricaded, and there was no

reason for anyone to pass by that area. Id. (citing Tr. 276, 291). Although Preece testified that

“[if] you don’t follow the roof control plan, over time it’s going to deteriorate and come out as

well.” Tr. 212. Respondent argues that “over time,” there would be no exposure because the

immediate area around the fender was barricaded and the entire set of rooms was barricaded at

the mouth, when completed. R. Br. 29 (citing Tr. 259-60).

Preece designated the violation as S&S because he believed that there was travel through

the area after the fender was created based on visible footprints behind the barricade. Tr. 184; P.

Ex. 4. In response to a leading question suggesting that the footprints were fresh, Preece

testified that the footprints were fresh because the day before there had been rock dusting

citations issued, and the footprints were visible in the fresh rock dust. Tr. 199. Respondent

36 FMSHRC Page 1687
argues that Preece was mistaken because the Certified Violation History Report shows that no

citation was issued on August 3, 2010 for a violation of section 75.400 or 75.403, each of which

would require rock dusting for abatement purposes. R. Br. 30, n.17 (citing P. Ex. 63). In

addition, because the footprints went straight through and not around the barricade, Respondent

disputes any travel through the area after the perimeter cuts were made. R. Br. 30 (citing Tr.

279-80). 

Respondent further argues that even if travel past the fender occurred, the Secretary has

failed to establish that the nine-inch deviation in fender width resulted in a roof condition that

posed a reasonable likelihood of serious injury. Respondent relies, in part, on ALJ decisions

applying section 75.202(a), which delete S&S determinations based on the unlikelihood that two

specific events will occur simultaneously, i.e., a rock will fall from the roof while a miner is

directly underneath it. R. Br. 29, n. 16 (citing Ohio County Coal Co., 31 FMSHRC 1486, 1489

(Dec. 2009) (ALJ); Freedom Energy Mining Co., 32 FMSHRC 1809, 1829 (Dec. 2010) (ALJ)).

Respondent argues that Preece’s own actions undercut his determination that the width of the

fender posed any serious hazard because Preece placed himself at the fender to measure it and

travel past it. Id. (citing Tr. 176-77). Finally, Respondent argues that Preece’s attempt to link

the purported travel past the fender to exposure to unsupported top should be discounted because

Preece followed the footprints “till they ended” and he never traveled under unsupported roof. 

R. Br. 30-31 (citing Tr. 197, 198, 223-24). Therefore, Respondent concludes that the route of

travel past the narrow fender did not place anyone under unsupported top. R. Br. 31.

The Secretary relies, in part, on a fatalgram from MSHA’s website that involved the

death of a miner caused by a roof fall in a mine with a similar roof. P. Ex. 31, at 2; Tr. 211. The

fatalgram states that the roof at issue was “gray shale and sandstone with intermittent siltstone

and carbonaceous shale deposits.” P. Ex. 31, at 2; Tr. at 211. Preece testified that the roof at

WLPM is similar since black shale and limestone are present. Tr. at 211. The fatalgram

investigation established that the mine was not following its roof control plan and a rock –

measuring 89 inches long by 45 to 54 inches wide by one to four inches thick – broke in two

pieces when it struck the victim. P. Ex. 31, at 1; Tr. 211. As noted, Preece testified that when a

mine does not follow its roof control plan, the roof will deteriorate over time and material will

come loose from the roof. Tr. 211.

Respondent counters that the roof control plan violation in the fatalgram involved a West

Virginia mine where thirty-five bolts exceeded the four-foot spacing requirement in the rock-fall

area. It did not involve the width of a fender during perimeter mining. Respondent argues that

the instant violation involves different requirements for different mining practices, and is not the

least bit similar. R. Br. 32-33. Further, Respondent argues that none of the roof falls that

occurred at WLPM between October 2009 and October 2011 (see P. Ex. 61) resulted from a

fender that was less than six feet in width. Therefore, Respondent argues that the fatalgram is

immaterial. Id. 

36 FMSHRC Page 1688
7

 I am not persuaded by Respondent’s argument that even if a section foreman or shift

leader subsequently learned about the creation of the narrow fender, there would be nothing that

such manager could do about it after it was created as the coal could not be put back in the

fender. I find that additional support could have been installed. I further find that there was

miner exposure, even in the absence of the visible footprint evidence, because the foreman or an

examiner should check the cuts after they are made. Further, a weekly examination is required

behind the barricade after perimeter cuts are taken. Tr. 234, 260-61. Finally, although Clarida

testified that during his career he was not aware of any incident when a continuous miner

operator would be operating the remote on the side of the machine opposite the fender, mining

history is replete with instances of serious injury or fatality when the operator is pinned on the

wrong side of the machine or struck by falling rock when in the red zone. 

c. Legal Analysis

I find the violation to be S&S. I credit the testimony of Preece, an experienced

underground coal inspector, over contrary testimony from Clarida, that the violation of the

mandatory standard created a measure of danger to safety because the non-compliant fender

contributed to the hazard of a roof fall that was reasonably likely to result in a serious injury. Tr.

212. Specifically, Preece testified that in his experience a roof fall is “very likely . . . if you

don’t support the roof, the roof will fall . . . it has no support . . . over time it’s going to

deteriorate and come out . . .” Tr. 212. Although Respondent relies on Clarida’s testimony that

no one was exposed to the noncompliant fender because the barricades were up and no one was

supposed to be in that area after the cut (Tr. 276), I find that a miner was in the area based on the

visible footprints that Preece observed, and that other miners were likely to be in the area and

exposed to the noncompliant fender during required examinations.7

I also emphasize that the instant record establishes an ongoing likelihood of roof falls at

WLPM. Tr. 178, 190, 206-07. Using Petitioner’s Exhibit 61, Preece highlighted the multitude

of roof falls at WLPM in the six months prior to his inspection. P. Ex. 61; Tr. 202. The MSHA

District Office considers such history when a roof control plan is approved, and there are no

exceptions to the fender-length requirement. Tr. 174. The standard requires development of a

roof control plan that “is suitable to the prevailing geological conditions and the mining system

to be used at the mine.” MSHA determined that the geological conditions and the room and

pillar mining system used at WLPM required the fender to be six or more feet wide at the front. 

It was nine inches too narrow. 

Grounds, Respondent’s compliance manager, conceded that the roof control

measurements that Respondent agreed upon and MSHA approved are important and should be as

precise as possible. Tr. 267-68. Respondent’s other witnesses also conceded that Respondent

must comply with the specific requirements of its MSHA-approved roof control plan. Tr. 286,

292. In these circumstances, particularly in light of Respondent’s recent history of roof falls, I

conclude that during continuous mining operations, it was reasonably likely that the

noncompliant fender would contribute to a hazard of another roof fall that would result in serious

injury. 

36 FMSHRC Page 1689
8

 Although Preece testified and his notes indicate that the narrow fender appears to be a

practice with perimeter mining and that previous rooms and mining indicate the same violation

of the plan (R. Ex. 85, at 14; Tr. 238-39), the Secretary provided no corroborating documentation

or citation for such assertions, and Citation No. 8030697 was written because the entry was cut

too wide, not too narrow. Tr. 243. Accordingly, I give little weight to such evidence.

I further find that Respondent’s negligence should be reduced from “high” to “moderate.” 

Per regulation, high negligence occurs when an operator knew or should have known of the

violation, and there are no mitigating circumstances. 30 C.F.R. § 100.3, Table X. Respondent

presented evidence that the continuous miner operator, an hourly employee, was responsible for

taking the cuts that created the narrow fender, and that the section foreman or shift leader was

only responsible for marking where the cuts were to be taken. Tr. 265, 289. In addition,

Respondent presented evidence that the section foreman or shift leader would have limited

opportunity to observe the narrow fender because a barricade was installed right after the cut was

made and no one would travel past that point. Tr. 276, 283.8 In these circumstances, I find that

Respondent has raised sufficient mitigating circumstances to reduce negligence from high to

moderate. See Excel Mining LLC, 497 F. App’x 78, 79 (D.C. Cir. 2013) (if no mitigating factors

exist, the violation is attributable to high negligence; otherwise, the inspector must find

moderate, low, or no negligence).

The Secretary justified a special assessment in this matter, particularly given

Respondent’s history concerning roof control violations and the Rules to Live By notice. Tr.

242-44, 246. Guided by the criteria set forth in § 100.3(a) and the Special Assessment General

Procedures, I assess a penalty of $14,700. 

2. Citation No. 8030992

The Secretary argues that Respondent violated § 75.202(b) when a miner traveled under

unsupported roof in a previously mined area, and that such violation was significant and

substantial, reasonably likely to be fatal, and resulted from moderate negligence. P. Br. 24. 

Respondent argues that it did not violate the standard because no miner worked or traveled under

unsupported top. R. Br. 42. Respondent also challenges the S&S and moderate negligence

designations and the appropriateness of the specially assessed $13,600 penalty. I affirm the

violation, reduce negligence from “moderate” to “no negligence,” reduce the likelihood of injury

or illness from “reasonably likely” to “unlikely,” and delete the significant and substantial

designation. Based on said modifications, I decline to be guided by the Secretary’s special

assessment of the proposed penalty, and assess a penalty of $162. 

a. The Alleged Violation

Near the cited fender, Preece observed fresh footprints in rock dust that he traced back to

a previously mined-out perimeter area until they turned and ended at the corner mouth of an old

set of unbolted rooms (return) where a miner had gone to the bathroom under unsupported roof

on fresh rock dust. Tr. 196-200; P. Ex. 8. Preece cited Respondent for a violation of §

36 FMSHRC Page 1690
9

 The subparts are not applicable as they include roof bolting and installation of roof

support using mining machines. See, e.g., 30 C.F.R. § 75.204 (roof bolting), 30 C.F.R. § 75.205

(installation of roof support using mining machines with integral roof bolters). 

75.202(b), which states that “[n]o person shall work or travel under unsupported roof unless in

accordance with this subpart.”9

 The alleged unlawful condition or practice states: 

Visible footprints were observed where a miner had traveled behind

the barricade located on the 005 section, No.1 room entry, 04+00 and

between the Nos. 7 and 8 perimeter cut which was not supported.

The miner traveled through the bleeder in the previously cut set of

rooms to relieve them self . . . .

P. Ex. 6. 

Preece designated the alleged violation as S&S after determining a reasonable likelihood

that standing or squatting under unsupported roof to relieve oneself would result in a crushing or

fatal injury from the hazard of a roof fall. Tr. 200-01; P. Ex. 6. Preece designated negligence as

moderate, but did not know whether a rank-and-file miner or a member of management was

responsible for the excrement. Tr. 216-17. When asked whether management should have been

aware of the alleged violation, Preece responded, “I would hope so, because management

controls the workforce on the section where people work and travel.” Id. 

On cross examination, Respondent established that the entries in the old set of rooms

were bolted. Tr. 225, 234. Respondent also established that when Preece was a foreman,

members of his crew would take certain action unbeknownst to him. Tr. 228. 

On redirect, however, Preece reaffirmed that there was no support on the corner of the

old perimeter mining area where the miner went to the bathroom. “There is no support at all

there.” Tr. 250-51. 

Respondent’s compliance manager Grooms and safety representative Clarida testified

that all entries and crosscuts in the rooms were bolted. Tr. 259, 282. In addition, Clarida

contradicted Preece and testified that “the evidence of the person relieving themselves was under

supported roof.” Tr. 283. When asked by the undersigned why this was so, Clarida testified,

“well, you can look up and see there’s roof bolts in the roof. It’s supported.” Tr. 285.

Both Preece and Clarida confirm that they never traveled under unsupported roof. Tr.

197, 223, 282. Clarida, however, testified that when he observed the excrement, he stood only a

foot away from it. Tr. 285. 

36 FMSHRC Page 1691
On rebuttal, Preece was shown his notes for the instant citation. Tr. 298-99; P. Ex. 7. 

Page 8 of his notes state: 

1) 1820

2) Visible footprints were observed in the number 1 entry

and through the barricade into the previous cut set of

rooms to relieve themself. The Miner traveled by the No.

7 & 8 perimeter cut that was unsupported. 

3) 005/005 Section, No. 1 entry 4+00 bleeder

4) Foreman was not aware that a miner traveled through

the area

5) from the previous shift

6) 1 miner traveling through the area to relieve themself

7) Crushing injuries

8) unsupported (illegible) 7-8

9) Visible footprints

b. Legal Analysis

In resolving the credibility conflict between Preece and Clarida as to whether the

excrement was under supported or unsupported roof, I credit Preece’s testimony in direct

response to questioning from the undersigned and find that someone went to the bathroom under

unsupported roof in fresh rock dust. Tr. 200, 250-51; P. Ex. 8; see also P. Ex. 5, at 24 (showing

that about ten feet in the corner of the entry of the perimeter mining area was unsupported). 

I reverse Preece’s S&S determination. Preece’s testimony suggests that it was not a

regular practice for miners to relieve themselves under unsupported top. Rather, it was common

practice was to do so under supported top. Tr. 300-01. I find that the instant violation was a

brief aberration, and the hazard contributed to by the violation was not reasonably likely to result

in an injury given the limited exposure and the unlikelihood that a rock would fall during such

brief exposure. Cf., Ohio County Coal, 31 FMSHRC at 1489; Freedom Energy, 32 FMSHRC at

1829 (deleting S&S designation for a violation of section 75.202(a) “in light of the uncertainty of

a potentially injury-causing event and limited presence of miners in the subject area”). 

Accordingly, I find that the third prong of the Mathies test was not established. 

The Secretary argues that I should uphold Preece’s moderate negligence determination. 

Although Preece could not determine if a miner or management was traveling under unsupported

roof, the Secretary argues that management either knew or should have known that workers were

traveling in unsupported areas. P. Br. 28. I disagree. Preece specifically testified that

management should have known of the violation because management controls the workforce on

the section where miners work and travel. Tr. 217. But Preece’s inspection notes indicate that

the “[f]oreman was not aware that a miner traveled through the area.” P. Ex. 7, at 3. As noted,

Preece could not determine whether the miner who relieved himself in the old set of rooms was

an agent of the operator. Tr. 216. Since the negligence of an hourly employee cannot be

36 FMSHRC Page 1692
10 See, e.g., Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115-16 (July 1995),

(citing S. Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982)). 

11 Rusher, now retired, inspected coal mines as an authorized representative for thirtythree years. He was assigned to MSHA’s Benton, Illinois field office. Tr. 308-09. Rusher had

twelve years of coal industry experience before joining MSHA. Tr. 309-10. Rusher had

inspected the WLPM since it opened. Tr. 312. 

imputed to the operator for purposes of a negligence designation,10 and the foreman was not

aware of the violation, which represented a brief aberration from regular practice, I find that the

Secretary has failed to establish any level of operator negligence. 

The Secretary failed to justify a special assessment in this matter, and particularly failed

to establish that multiple citations were issued for the same violation, as Preece testified. Tr.

242. Guided by the regular assessment criteria set forth in § 100.3 and my findings above, I

assess a penalty of $162. 

3. Citation 8427546

The Secretary argues that there was a S&S violation of section 75.202(a) resulting from

high negligence because five pattern roof bolts and plates had separated from the roof causing

de-lamination and increasing the pressure on surrounding bolts to support more weight than

intended. P. Br. 29. Respondent does not challenge the violation, but challenges the gravity,

S&S, and high negligence findings and the appropriateness of the specially assessed $50,700

penalty. I affirm the violation, as written, and the specially assessed penalty of $50,700. 

a. The Alleged Violation

On June 24, 2011, inspector James Rusher11 was traveling the No. 2 room haulageway,

where steel-canopied haulers transport coal from face to feeder. P. Ex. 21; Tr. 314. 

Respondent’s section supervisor and safety representative, Crit Stephenson, accompanied

Rusher. Tr. 370-71. 

Rusher noticed five pattern roof bolts that had been dislodged by mobile equipment, three

in one place (tag No.0+65) and two more just a few feet away (tag No.1+95), which was causing

separation and de-lamination in the immediate roof. P. Ex. 21; P. Ex. 22, at 9; Tr. 314. Rusher

cited Respondent for a violation of § 75.202(a), which states, “[t]he roof, face and ribs of areas

where persons work or travel shall be supported or otherwise controlled to protect persons from

hazards related to falls of the roof, face or ribs and coal or rock bursts.” P. Ex. 21; Tr. 315. 

All five plates were loose, which caused causing sagging or de-lamination of the roof in

those areas. Tr. 316-17, 320-22. Rusher explained that when the bolts and plates became loose,

layers of the roof began to separate, and support for the immediate roof was compromised by

strain on the surrounding bolts. Tr. 314-17, 318, 322. Although Stephenson testified that he did

36 FMSHRC Page 1693
not notice any de-lamination and that Rusher did not point it out (Tr. 378-79), I credit Rusher’s

specific description of the de-lamination, which was obvious after rock dusting, and made the

roof unsafe because it put greater load on the surrounding bolts and would likely result in a roof

fall. Tr. 316-22; 344. Rusher’s testimony concerning the de-lamination is corroborated by

Rusher’s inspection notes. P. Ex. 22, at 9. Rusher further credibly testified that the face boss

had to travel through that particular intersection to check on the face for methane every twenty

minutes, and should have detected the condition. Tr. 334, 365. 

I also agree with Rusher’s S&S determination because the violation contributed to a

specific roof-fall hazard that was reasonably likely to result in a serious or permanently disabling

injury to two miners, i.e., a coal haul operator and a supervisor making rounds or checking faces, 

in the heavily traveled haulageway. P. Ex. 21; Tr. 322-330. Although Rusher noted that the

roof conditions were solid (P. Ex. 22, at 6) and Stephenson testified that the roof looked fine (Tr.

372, 381), I find that the number of dislodged roof bolts in the pattern and the de-lamination of

the roof in the immediate area contributed to a discrete roof fall hazard because during the course

of continued mining operations, the other surrounding bolts would not support the weight of the

roof. A roof fall across the compromised area would likely crush even those traveling in a

covered canopy. Furthermore, Respondent has a remarkable history of roof falls even with fully

grouted bolts. P. Ex. 61; Tr. 380-81. Accordingly, I affirm the gravity and S&S findings. 

I also affirm Rusher’s high negligence determination because Respondent knew or should

have known about the violation, and there are no mitigating circumstances. As outlined above,

there were many roof falls and roof-control issues at WLPM. P. Exs. 28-30, 61. Respondent

was aware of MSHA’s warnings regarding increased enforcement, particularly in light of the

closeout conferences and enhanced emphasis on §§ 75.202(a) and (b) in the RTLB program. 

There was constant traffic in the haulageway. Tr. 325, 334. I have found that rock dusting made

the separated bolts and plates and the concomitant de-lamination obvious. The face boss

traveled through the intersection every twenty minutes and should have detected and corrected

the condition. In these circumstances, and in the absence of any mitigating circumstances, I find

that the violative condition resulted from Respondent’s high negligence.

The Secretary justified a special assessment in this matter, particularly given

Respondent’s history concerning roof control violations, the Rules to Live By notice, and

Rusher’s testimony that this was an active haulageway, with five roof bolts dislodged and

extensive de-lamination. Tr. 242-44, 246, 360. Guided by the criteria set forth in § 100.3 and

the Special Assessment General Procedures as set applied in the Special Assessment Narrative

Form (R. Ex. 58), I assess a penalty of $50,700. 

36 FMSHRC Page 1694
12 I note that Roger “Blaine” Shires, section foreman, did testify at the hearing as to the

facts pertaining to Citation No. 8428378, discussed below. The two Shires should not be

confused as Rodney Shires was a rank-and-file miner. 

B. Accumulations of Combustible Material Order No. 8030700 and Citation Nos.

8428798, 8428776, and 8436403

1. Order No. 8030700

The Secretary argues that Respondent violated section 75.400 because accumulations of

combustible material were amassed in two different crosscuts, and although the non-S&S

violation was unlikely to lead to a lost workdays or restricted duty injury, it was an

unwarrantable failure resulting from high negligence. Respondent specifically challenges the

unwarrantable failure and high negligence findings and the specially assessed $8,400 proposed

penalty. As explained below, I find the non-S&S violation, reduce Respondent’s negligence to

moderate, reverse the unwarrantable failure finding, and assess a penalty of $500. 

a. The Alleged Violation

 On August 1, 2010, when inspector Preece and miner/union representative Rodney

Shires were exiting the mine in a diesel vehicle driven by Respondent’s mine manager, Roby

Podoriscki, Preece asked, “[w]hat is that in the crosscut?” Tr. 68. Preece testified that he

received a response that it was roadway gob or something to that effect, but he did not identify

who gave that response. Tr. 68-69. Rodney Shires did not testify.12 Given the noise of the

diesel engine and Podoriscki’s denial that he had such a conversation or heard any such

conversation between Preece and Shires, the Secretary failed to establish that Podoriscki knew

about the conditions on August 1, 2010. See Tr. 88-89, 100-104. 

On August 2, 2010, inspector Preece, accompanied by Respondent’s safety representative

Shane Kendall and miner/union representative Rodney Shires, rode to crosscut 107 in the 5D

travel road where Preece had noticed accumulations the prior day while exiting the mine. Tr. 33-

37, 60, 116-17, 119. Preece issued 104(d)(2) Order No. 8030700 for accumulations of

combustible material. The alleged accumulations consisted of a mix of combustible and noncombustible materials, consisting of wood, coal mixed with mud or stone, roadway material such

as fire clay, gob of rock and mud, crushed up oil cans that still had oil in them, roof bolts, glue

and plates, and other refuse, such as rock dust bags. The materials were piled up in two

locations about 300 feet apart in the 107 and 109 crosscuts on the 5D travel road. The alleged

accumulations in the 107 and 109 crosscuts where piled four feet high and covered an area of

10x20 feet and 8x15 feet, respectively. Tr. 35-37, 47, 78, 122-125; P. Ex. 1-3; R. Exs. 81(c)-(f).

The Order states:

Accumulation of combustible materials were allowed to accumulate

in the No. 6 to No. 5 entry crosscut, 5 “D” Travel road. Coal dust,

36 FMSHRC Page 1695
including float coal dust deposited on rock-dusted surfaces, loose

coal, and other combustible materials (wood and paper) were not

being cleaned up and permitted to accumulate. The following

conditions existed:

1.) 107 crosscut, 80+70, Combustible material mixed with roadway

material, gob and coal from sloughage of the rib existed next to the

stopping measuring 10 feet in length, 20 feet in width and 4 feet in

height.

2.) 109 crosscut, Combustible material mixed with roadway material,

gob and coal from sloughage of the rib existed next to the stopping

measuring 8 feet in length, 15 feet in width and 4 feet in height.

Upon interviews with Mine Management, management stated that the

condition was obvious and extensive, has existed for over 24 hours

and has a history of accumulation violations (299 in the previous 24

months) and Mine management was in the area of the accumulations

on all shifts.

P. Ex. 1. Preece testified that his concern was that the accumulations had not been rock dusted

properly, although there was some rock dust underneath the piles. Tr. 46-47. 

Preece designated the alleged violation as non-S&S after determining that the hazard of

fire or propagation of an explosion was unlikely because of the location of the material in the

crosscuts and the fact that no vehicles were running over the coal present in the piles, the coal

was not raised in suspension, and other areas of the mine were adequately rock dusted. P. Ex.

1; Tr. 42, 45-46, 89. If a fire or explosion were to occur, however, Preece determined that the

likely injury would be lost workdays or restricted duty to one person due to smoke inhalation. 

P. Ex. 1; Tr. 46. 

Preece determined that Respondent’s negligence was high because the condition had

existed for at least three shifts, and prior to Preece’s inspection the previous day, Rodney Shires

had confirmed this. Tr. 43-45, 60-61, 67; P. Ex. 2, at 3. Preece also testified that management

must have known of the conditions because “someone gave orders for someone to clean up

these roadways and put this material in certain locations.” Tr. 43. 

Preece further determined that the alleged violation was an unwarrantable failure

because management should have known that the condition existed, it was present for more than

three shifts, it was obvious and extensive, and it was not rock dusted to ensure inertness. Tr.

66-67. 

Respondent argues that the condition was not extensive or obvious, existed for an

indeterminate period of time, and did not pose a high degree of danger to miner safety. 

36 FMSHRC Page 1696
Respondent further argues that the operator had no specific knowledge of the alleged violation

and had not been placed on notice that greater efforts for compliance with the standard were

necessary. 

To abate the conditions, Preece required the material to be rock dusted, but not removed

from the mine. Tr. 71, 76-77. After rock dusting, Respondent’s third-shift safety manager,

Andy Murphy, took a zip-lock bag sample of each pile of material by scraping off the rock dust

and reaching six to eight inches into each pile to obtain the samples. Tr. 143-45. Preece did not

observe the sampling. Tr. 72. 

Murphy testified that in each sample, he obtained gob or real soft material, which likely

originated from the travel road. Tr. 146, 150. Each sample was labeled and given to

Respondent’s compliance manager, Todd Grounds, who delivered them that same day to

Standard Lab for analysis. Tr. 150, 157. 

The sample taken from crosscut 107 was determined to be 66.12% incombustible. The

sample taken from crosscut 109 was determined to be 72.71% incombustible. Tr. 157-58; R.

Ex. 82. During this time, both samples met section 75.403’s incombustibility requirement for a

travel road, which was 65%, but has since been increased to 80%. Tr. 158-59. 

The Secretary argues that combustibility tests are only performed in section 75.403

violations and are irrelevant to section 75.400 violations. P. Br. 37. Also, even if relevant, the

Secretary argues that Respondent’s tests would not have passed under today’s standards. P. Br.

37-38; (citing Tr. 157). Finally, the Secretary notes that the samples were not band samples,

and they were not taken or handled by anyone with training in sampling for incombustibility

determinations. P. Br. 38 (citing Tr. 163).

 

Mine manager Roby Podoriscki testified that the roadway bottoms primarily consist of

fireclay, a soft noncombustible substance. Tr. 108. He further testified that the practice of

scooping up gob from the travel roads and pushing it into the crosscuts was common practice at

WLPM and at four or five other Illinois mines where he had worked. Further, Podoriscki had

never received, nor was he aware of, any citations for this practice. Tr. 107-08. Similarly, prior

to the issuance of the Order, MSHA had never warned or cited WLPM for this practice. Tr.

107. 

b. Legal Analysis

To the extent that Respondent’s brief can be read as challenging the violation, I affirm

inspector Preece’s finding of a non-S&S violation. Section 75.400 provides that “[c]oal 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.” The record establishes that loose coal, crushed

oil cans, wood and other combustible material, mixed with non-combustible material were

36 FMSHRC Page 1697
allowed to accumulate in two large piles about 4 feet high, 20 feet wide, 10-15 feet long, and

about 300 feet apart in the 107 and 109 crosscuts on the 5D travel road for over three shifts. 

The Commission has held that a “construction of the standard that . . . allows

accumulations of loose coal mixed with noncombustible materials, defeats Congress’ intent to

remove fuel sources from mines and permits potentially dangerous conditions to exist.” Black

Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985); but see Lion Mining Co., 19

FMSHRC 651, 656 (Mar. 1977) (ALJ) (vacating 104(d) order alleging that gob material was an

accumulation and concluding that section 75.403 is the appropriate standard to address the

potential hazards associated with combustible material in gob). In this case, the Secretary has

interpreted the standard consistent with Black Diamond, supra, and I give deference to the

Secretary’s reasonable interpretation consistent with Commission precedent. Accordingly, I

affirm the non-S&S violation. 

I reduce Respondent’s negligence to moderate. The Respondent should have known of

the violation, but there are mitigating circumstances for Respondent’s failure to clean up the

accumulations. Irrespective of mine manager Podoriscki’s denial that he knew about the

conditions until after issuance of the Order (Tr. 104) and Preece’s speculation that management

must have directed the workforce to push the materials in the crosscuts (Tr. 72), I credit and rely

on Preece’s testimony that examinations on the roadway are done by agents of the Respondent

three times daily. Tr. 70. Thus, Respondent’s examiner agents should have known about the

accumulations. 

Respondent, however, presented credible evidence of mitigating circumstances. The

accumulations were significantly composed of gob laced with debris and were pushed deep into

crosscuts to clear the travel roads. Respondent presented evidence that this was a common

practice at Willow Lake and in the Illinois Basin and Respondent had not been cited by MSHA

before for this practice. Further, both of Respondent’s samples exceeded incombustibility

requirements for when rock dusting was required. Moreover, MSHA required rock dusting to

abate the violation. Accordingly, I reduce Respondent’s negligence to moderate. 

I reverse the unwarrantable failure designation. I find, contrary to Respondent’s

arguments, that the accumulations were obvious, existed for over three shifts, and should have

been detected for clean up by Respondent’s examiners even though the conditions were about 70

feet within the crosscuts. See R. Br. 13. In fact, Preece noticed the accumulations in passing

from the 5D travel road the day before the Order was issued and specifically inquired about

them. Tr. 68, 76. The fact that the accumulations of combustible and non-combustible material

were unlikely to ignite does not exempt an examiner from documenting them as potential

hazards in examination reports. 

While Respondent concedes that the piles were significant in size, it argues that the

amount of combustible material was not extensive since about two-thirds of each pile was

composed of non-combustible material. R. Br 15 (citing Tr. 157-58; see also R. Ex. 82). I find

some merit in this argument since the standard requires cleanup of combustible material. 

36 FMSHRC Page 1698
Moreover, abatement was accomplished quickly by adding additional rock-dust. Preece did not

require the accumulations to be removed from the mine. Tr. 76-77. On the other hand, there

were two large piles of material with some combustible content within 300 feet of each other. In

these circumstances, I find the extensiveness factor to be neutral in the unwarrantable failure

analysis. 

The condition did not pose a high degree of danger to miner safety. The Order was

designated non-S&S and involved piles of material that were largely incombustible. As noted,

abatement was accomplished by adding additional rock-dust, but the accumulations were not

removed. 

Although Respondent was clearly placed on notice of a past history of section 75.400

violations, it was not placed on notice that greater efforts were necessary to comply with its

apparent practice of pushing large gob piles into a crosscut to clear travel roads. Tr. 83. The

Secretary provided no evidence to rebut the testimony of Respondent’s witnesses Podoriscki and

Kendall that the practice was employed at Willow Lake and other mines in the Illinois Basin

where they had worked, and that MSHA did not notify Respondent that the practice was

prohibited. In fact, MSHA’s sanctioned abatement method of additional rock-dusting rather than

removal adds confusion as to what should be done with such accumulations. I also note as a

practical matter, that when clearing travel roads of debris, it may be difficult to immediately

remove non-S&S accumulations such as those at issue from the mine. Under these

circumstances, I find that Respondent was not placed on notice that greater efforts were

necessary to comply with the standard as applied in this case. Rather, in the absence of any

evidence that the past citations or discussions with MSHA involved conditions that bore any

resemblance to the conditions cited in Order No. 8030700, I decline to find that Big Ridge was

on notice that greater efforts toward compliance were necessary. See, e.g., Cumberland Coal

Res. LP, 31 FMSHRC 137,157 (Jan. 2009) (ALJ) (finding in the section 75.400 context that “to

establish that [the operator] had been put on notice that additional compliance efforts were

needed, the Secretary was required to show more than a history of prior citations for violations

of the broad standard”). 

In sum, I find that the accumulations were obvious, extant for at least three shifts, and

Respondent should have known that they existed. On the other hand, the accumulations of

combustible material were not particularly extensive since they comprised only about one-third

of the piles and were quickly abated through rock dusting, they did not present a high degree of

danger, and Respondent was not placed on notice that greater efforts were necessary to comply

with its practice of pushing large piles of gob mixed with lesser combustible material into 

crosscuts to clear travel roads. Thus, while the issue is close, on balance I find no aggravated

conduct or unwarrantable failure here. 

Since I have reduced Respondent’s negligence to moderate and reversed the

unwarrantable failure finding, which was the primary basis for Preece’s special assessment

recommendation (Tr. 72-73), I decline to be guided by the Secretary’s special assessment

36 FMSHRC Page 1699
13 Fazzolare has inspected underground coal mines for more than thirteen years and began

inspecting WLPM in 2008. Tr. 721-22. Before that he worked for Kerr-McGee Coal Corp., in

Galatia, Illinois as a laborer, construction worker, roof bolter, and/or continuous miner operator

from 1984-1998. He is also an Illinois certified examiner and mine manager, and has shop fire

papers. Tr. 722. 

guidelines. Consistent with my findings above and section 110(i) criteria, I find that a penalty of

$500 is appropriate for the violation. 

2. Citation No. 8428798

The Secretary argues that Respondent violated section 75.400 because the transformer

“5D” belt line had accumulations of float coal dust on previously rock dusted areas. The

Secretary claims that the violation was S&S because it was reasonably likely to lead to a lost

workdays or restricted duty injury to one person. The Secretary also claims that the violation

was the result of high negligence because the cited condition was recorded in the on-shift

examination records and Respondent provided no mitigating information to the inspector about

why the condition was allowed to continue unabated. 

Respondent argues that the citation should be vacated because no violation of the cited

standard occurred; that if a violation is found, the S&S and high negligence designations are

inappropriate; and that the regularly assessed proposed penalty of $13,268 is excessive. 

a. The Alleged Violation

During the day shift on October 13, 2011 at 9:20 a.m., MSHA inspector Anthony

Fazzolare issued 104(a) Citation No. 8428798.13 It alleges a violation of 30 C.F.R. § 75.400, as

follows:

The transformer for the “5D” Belt Line had float coal dust deposited

on previously rock dusted areas. The float coal dust was paper-thin

to approximately 1/8 inch thick, black in color and from rib to rib and

on the top of the transformer.

This condition was listed in the on-shift examiners report from the

previous shift’s examination.

This is the 267th violation of this standard at this mine since

10/20/2009.

P. Ex. 40. The Citation was designated S&S, reasonably likely to result in a lost workdays or

restricted duty to one person, and was the result of high negligence. Id. Fazzolare’s photographs

36 FMSHRC Page 1700
14 At hearing, inspector Fazzolare referred to several pieces of electronic equipment as

“non-permissible.” The inspector, however, uses the term in a confusing fashion. When

Fazzolare called equipment “non-permissible,” he was referring to the permissibility standards

for electrical equipment used at the face, not to the permissibility standards applicable to the rest

of the mine. Tr. 807-808. The permissibility requirements at the face are more stringent as they

are intended to prevent or contain the ignition of an explosive air-methane mixture. See Knox

Creek Coal Corp., 35 FMSHRC ___, slip op at 4, No. VA 2010-81-R (May 28, 2014). The

electrical equipment addressed in this case was not located at the face and therefore was not

required to include enhanced design requirements. See Tr. 807-808. There is no question that

the electrical equipment in question met MSHA design requirements to reduce the likelihood of

fire and was permissible for the location in which it was used. Id.; see also 30 C.F.R. § 75.2. 

15 Safety compliance supervisor, Daniel Bishop, testified that all he saw was gray

material on the floor. He did not see any float coal dust on top of the transformer. I credit

Fazzalore that the float coal dust was paper-thin, black in color, ran from rib to rib, and was

present on the top of the transformer. Fazzolare took photographs to document the condition. P.

Ex. 41. 

depicted accumulations of coal on the transformer, on a permissible14 electrical light, and on the

floor as indicated by visible footprints. Tr. 812-16, 832, 898; P. Ex. 41. 

The accumulations were in an active working area where miners were required to work

and travel. Tr. 818-19, 890. In fact, the on-shift examiner’s report from the previous shift listed

the condition. P. Ex. 40. 

Fazzolare’s testimony about the condition was consistent with the citation, as written. 

Fazzolare described the float coal dust as paper thin to approximately one-eighth of an inch

thick, black in color, from rib to rib approximately 20 feet in width, and present on the top of the

transformer. Tr. 806, 808; P. Ex. 40.15 Fazzolare described the condition as dangerous because

float coal dust is highly combustible, can ignite at 300 degrees Fahrenheit, and was permitted to

accumulate from rib to rib, and on top of the permissible transformer (power center). Tr. 806-08,

817, 869. No methane was detected in the area. Tr. 835.

Bishop testified that he did not see Fazzolare check inside the transformer, although

Bishop looked inside and did not see any material. Tr. 857-58. Bishop also testified that the

west side of the transformer was damp. Tr. 865. 

The transformer was in the same crosscut off the 5D travelway where the accumulations

were found on the floor from rib to rib. Tr. 811, 828, 852. The transformer receives power and

distributes it to run the 5C belt. Tr. 806, 812. Fazzolare testified that as the transformer receives

power, it generates heat, and the float coal dust on top of the transformer would act as a thermal

36 FMSHRC Page 1701
16 Respondent’s mid-west safety director, Chad Barras, testified that the heat generated

on the surface of the transformer was somewhere between 100 to 180 degrees. Tr. 896. 

17 Neither Hughes nor Partridge were called to corroborate this hearsay. 

blanket trapping heat inside. Tr. 809.16 Fazzolare testified that the cat heads going into the

power center were another potential heat or ignition source. Tr. 818. 

Fazzolare was concerned about a fire because float coal dust is highly volatile and does

not require much temperature to ignite. Tr. 816. Fazzolare further testified that since the float

coal dust was paper thin and sat on top of the rock dust, the rock dust would do nothing to

extinguish a fire. Rather, the float coal dust would burn off and add fuel to a fire. Tr. 808. 

Fazzolare determined that the three elements necessary for a fire were present: fuel (float coal

dust); oxygen (in the air throughout the mine), and an ignition source (permissible power center). 

Tr. 817. Fazzolare was concerned that the power center could have a problem at any time under

continued mining operations. Tr. 844. Fazzolare determined that in the event of a fire, one

person in the area, an examiner or maintenance person, was reasonably likely to suffer a lost

workday or restricted duty injury from smoke inhalation. Tr. 818-19.

Respondent’s assistant shift mine manager, Charles Lane Hendricks, testified that during

the pre-shift examination on the midnight shift, the examiner reported that the transformer for the

5D drive needed dusting because it was black. Tr. 878; R. Ex. 92. The written report was

reviewed and noted by Hendricks about 6:15 a.m., prior to the start of the 7 a.m. day shift. Tr.

877-879. Hendricks discussed the condition with other shift managers and assigned day-shift

belt shoveler, Harley Partridge, to address the condition. Tr. 878-79. Hendricks credibly

testified that he instructed Partridge to adjust his work duties and make the condition his first

stop of the day, thus giving the matter priority. Tr. 879. 

Hendricks testified that Partridge typically would catch the first available ride into the

mine after shift change, and get off about thirty minutes later at his golf cart located on one of

the main north belts, which he used to travel to different belt drive locations. Tr. 879. Hendricks

recalled that on the day in question (October 13), Partridge and others did not get a ride into the

mine until about 8 a.m., which meant that Partridge would not have reached his golf cart until

about 8:30 a..m., and would not have reached the location of the 5D transformer until about 8:55

a.m., i.e., about twenty-five minutes before Fazzolare wrote the citation. Tr. 880-81. Hendricks

further testified that about 9 a.m., he received a call from another mine manager, Ronnie Hughes,

informing him that Partridge’s golf cart had malfunctioned, and that the inspector had found a

problem at the transformer. Hughes asked Hendricks, who was in another area of the mine, to

get down there. Tr. 882-83.17

Fazzolare testified that Respondent provided no mitigating information as to why the

condition was allowed to continue. Tr. 823-24. By contrast, Hendricks testified that when he

arrived at the transformer, Fazzolare explained why he was writing the citation. In response to a

leading question, “[d]id you tell him what you told us, that you had somebody on the way,”

Hendricks testified, “Yes, I did.” Hendricks did not recall any response from Fazzolare. Tr.

36 FMSHRC Page 1702
18 It is unclear from Fazzolare’s testimony how the overhead light or cat heads could act

as ignition sources. No coal dust was observed on the cat heads and the overhead light would

not be susceptible to the “thermal blanket effect” described by Fazzolare. Further, it is unlikely

that the fluorescent bulb in the overhead light would be able to reach a temperature capable of

igniting the coal dust. Tr. 898; see generally Clete R. Stephan, MSHA, Coal Dust Explosion

Hazards, http://www.msha.gov/S&HINFO/TECHRPT/P&T/COALDUST.pdf (top of a 1500-

watt incandescent bulb can exceed 300 degrees Celsius). 

883. Safety compliance supervisor, Daniel Bishop, testified that Hendricks told Fazzolare that he

had sent an employee to address the problem, but his ride went dead and he had not made it there

yet. Tr. 865. On cross examination, Fazzolare admitted that he vaguely recalled the mine

manager telling him that somebody was on the way, but his ride had broken down. Tr. 841. 

Accordingly, I find that Hendricks did offer evidence of mitigation, i.e., that Partridge had been

dispatched to correct the accumulation problem, but his ride had broken down and Partridge had

not arrived yet. 

Hendricks opined that the condition would have been addressed about twenty minutes

after Fazzolare’s arrival at the transformer. Tr. 883-84. The Citation was abated in about ten

minutes when rock dust was spread around the transformer on the floor. Tr. 859, 890. Bishop

testified that Fazzolare did not require any cleaning of the top of the transformer or the nearby

light to abate the Citation. Tr. 858-59, 871.

b. Legal Analysis

I find a violation of section 75.400. The credited evidence establishes that Respondent 

permitted accumulations of float coal dust from rib to rib in an active working area and on the 

transformer or power center, a piece of electric equipment. In fact, Respondent’s examiner 

reported that the transformer for the 5D drive needed dusting because it was black. Tr. 878; R. 

Ex. 92. 

I further find that the violation is not S&S. Fazzolare credibly testified that although coal 

dust has a relatively lower heat threshold required for combustion, the coal dust in the Illinois 

coal basin must be heated to 300 degree before it will ignite. Tr. 807; see also Tr. 900. 

Fazzolare was primarily concerned that the electrical transformer might provide an ignition 

source for the coal dust.18 Fazzolare, however, did not remember if the transformer was hot 

during the inspection and did not offer any testimony as to the potential heat the transformer 

could generate. Tr. 831. Respondent, on the other hand, adduced uncontradicted testimony 

from Barras that the transformer was between 100-180 degrees, but was not hot enough to burn a 

miner if touched. Tr. 896. Furthermore, Bishop credibly testified that the transformers where 

never too hot to handle comfortably during the hundreds of times that he had accessed them. Tr. 

856-57. 

36 FMSHRC Page 1703
19 Even Fazzolare conceded on cross that the coal dust would have to build up before it

would act like a thermal blanket trapping heat in the transformer enclosure. Tr. 831. 

I am not convinced by Fazzolare’s assertion that the paper thin layer of coal dust would 

have provided sufficient insulation to cause the transformer’s temperature to rise over the 100 

degrees necessary to cause the coal dust to ignite.19 There is no question that there can be a 

danger of electrical equipment overheating and rising to a temperature capable of igniting coal if 

there is a significant amount of densely packed coal enveloping electric equipment. See Enlow 

Fork Mining Co., 19 FMSHRC 5, 8-11 (Jan. 1997) (remanding S&S analysis where inspector 

noted up to 2 1⁄2 feet of coal dust, hydraulic oil, and loose coal packed in and around a gear case). 

Commission ALJs, however, have not been inclined to find that an ignition source exists when 

only a relatively small layer of combustible material covers electrical equipment. Pittsburg &

Midway Coal Mining Co., 16 FMSHRC 574, 578-79 (Mar. 1994) (ALJ); Cam Mining, LLC, 34 

FMSHRC 2965, 2972-75 (Nov. 2012) (ALJ) (finding that an ignition based upon the heat 

generated by a transformer box and the electrical connections therein was not reasonably likely). 

In the case at hand, the dust on the outside of the transformer enclosure was only paper 

thin and there is insufficient evidence on this record to establish that enough coal dust would 

accumulate under continued mining operations to create the “thermal blanket effect” described 

by Fazzolare. No dust was observed in the enclosure where it could be ignited by sparks or 

arcing that might occur assuming malfunction during continued mining operations. Tr. 831; see 

also Knox Creek Coal Corp., 35 FMSHRC ___, slip op at 7, No VA 2010-81-R (May 28, 2014) 

(judges should assume common malfunctions of electric equipment in determining whether 

electronic equipment is an ignition source).

Based on the foregoing, I find that under continued normal mining operations, it was 

unlikely that a fire at the transformer would result in a lost workday or restricted duty injury from 

smoke inhalation to a miner traveling in the active working area. Tr. 818-19. The Secretary has 

failed to show a confluence of factors such as methane or ignition sources as required under 

Commission precedent in Texasgulf, 10 FMSHRC at 500-3. Accordingly, the S&S designation is 

removed. 

I reduce Respondent’s negligence from high to moderate. It is undisputed that the

Respondent knew about the accumulation problem. Although Fazzolare testified that

Respondent provided no mitigating information as to why the condition was allowed to continue,

I have found that Hendricks did offer evidence of mitigation, i.e., that Partridge had been

dispatched to correct the accumulation problem, but his ride broke down and he had not arrived

yet. Hendrick’s testimony was corroborated by Bishop’s testimony and Fazzolare’s vague

recollection. Although the Secretary argues this was not a mitigating circumstance because the

citation was issued at least two and a half hours after the on-shift examiner recorded the

hazardous condition, I credit Hendrick’s testimony that he gave the matter priority that morning,

but Partridge’s golf cart broke down. The Secretary offered no evidence to the contrary, and did

36 FMSHRC Page 1704
not subpoena Partridge to testify. In these circumstances, I find sufficient evidence of mitigation

to reduce Respondent’s negligence from high to moderate. 

Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings

above, I assess a penalty of $807. 

3. Citation No. 8428776

The Secretary argues that Respondent violated section 75.400 because there were

accumulations of float coal dust under the cable reel of the Fletcher Roof Bolter Co. No. 425,

located in the #1 Unit on the right side. The Secretary claims that the violation was S&S

because it was reasonably likely to lead to a lost workdays or restricted duty injury to two

persons, and was the result of high negligence because Respondent should have known about the

condition and offered no mitigating circumstances. 

Respondent argues that the S&S and high negligence designations are inappropriate and

that the regularly assessed proposed penalty of $14,373 is excessive. 

a. The Alleged Violation

On September 3, 2011, MSHA inspector Fazzolare, accompanied by Respondent’s 

representative Mike Cummins, inspected the Fletcher Roof Bolter No. 425. Tr. 966. There 

were no defects observed with the cable, or any other component of the permissible roof bolter 

(pinner), which might act as a potential ignition source. Tr. 939, 943, 950, 966-67. 

Fazzalore issued 104(a) Citation No. 8428776, which alleged a violation of 30 C.F.R. §

75.400, as follows:

There were accumulations of coal, oil and float coal dust under the

cable reel of the Fletcher Roof Bolter Co. No. 425, located in the #1

Unit on the right side.

These accumulations were black in color and ranged in depth from 1

inch to 11⁄2 inches deep and the cable reel had been rolling in

accumulations.

P. Ex. 32; Tr. 956. The citation was designated S&S, reasonably likely to result in a lost

workdays or restricted duty injury to two persons, and the result of high negligence. P. Ex. 32.

Consistent with the citation, Fazzolare testified that he observed accumulations of coal,

oil and float coal dust under the cable reel of the Fletcher roof bolter. Tr. 924. Cummins

testified that there was no float coal dust present. Rather, there was moist material comprised of

fire clay, coal fines, and rock dust from the mine floor. Tr. 965. 

36 FMSHRC Page 1705
The cable reel is insulated to isolate the possibility of the flow of electrical current and it

carries about 350 feet of 480-volt energized cable, which powers the roof bolting machine. Tr. 

924-25, 960-62, 973. The cable reel retracts or releases cable as the bolter moves. Tr. 925. The

reel is guarded in front and covered on top, making observation or photographing of the inside of

the reel compartment difficult. Tr. 964-65; R. Ex. 87(a). To reach into the compartment, a

miner would have to reach between two guides that aid the retraction and extension of the cable. 

Tr. 977. 

At one point, Fazzolare testified that the cable reel served as an ignition source. Tr. 927,

929; P. Ex. 32. Although the bolter is permissible equipment, this fact did not factor into

Fazzolare’s assessment because of the location of the accumulations underneath the cable reel. 

Tr. 929. Fazzolare testified that once the cable reel was full, the cable would be rolling in the

accumulations. Tr. 926. 

Upon subsequent questioning from the undersigned, Fazzolare testified, without further

explanation, that he saw evidence that the cable reel had been rolling in accumulations. Tr. 932. 

I discredit this testimony because, as further explained below, Fazzolare walked and examined

the full length of the cable when it was extended off the reel (Tr. 950), and the power was not

energized on the machine to observe the retraction because the unit was idle. Tr. 934, 952, 954. 

Rather, I find that Fazzolare was speculating as to what would occur during the retraction

process. 

Fazzolare then testified that the roof bolter, the electrical motors on the roof bolter, and

the cable, all generate heat. Tr. 932. Fazzolare testified that he had no knowledge of the cable

being shielded. Tr. 939, 967. Fazzolare examined the full length of the cable and found no

defects. Tr. 942. 

Fazzolare testified that the cable reel would be full of energized cable and there could be

a pinhole in that electrical cable that would be hard to see or detect and create an ignition source. 

Fazzolare also testified that he got shocked because of a pinhole when he was a roof bolter on a

different type of machine, but the cable on that machine was not shielded. Tr. 930-31, 947, 950-

51. 

The specific hazard that Fazzolare was concerned with was smoke inhalation by the two

roof bolters in the event of a fire. Tr. 930-31. He testified that if the cable reel was full during

roof bolting, and there was a bad spot in the cable, a pinhole would ignite the float coal dust or

coal, and the miners would be exposed to smoke inhalation from the fire, resulting in lost work

days or restricted duty. Tr. 932-33. Fazzolare further testified that splices in cable are common

because the cable or insulation gets torn, exposing the inner leads, and the cable gets run over,

requiring spicing. Tr. 949.

The record establishes that underneath the cable reel and between its side walls there are

clean-out holes that permit water and other material to exit the compartment when it is washed

36 FMSHRC Page 1706
out, or enter the compartment when the rear of the articulated bolter pivots up and down to

follow the contours of the mine floor during tramming. Tr. 961-63, 965-66; R. Ex. 88(a). 

Cummins, a former 11-year roof bolter, testified that a clean reel compartment can become dirty

in minutes from mine floor material entering the compartment through the drain holes if the

bolter is operated with the rear of the machine articulated on the ground. Tr. 959, 965, 984. 

Cummins further testified that the retracting cable would not rub in the accumulations

because a tape ball prevents overloading beyond the sides of the cable reel. Tr. 972. He further

testified that the reel moves at such a slow rate of speed during the tramming process – about 35

feet of cable could be retracted in a minute – that frictional heat would not be generated. Tr.

972-73. 

Fazzolare testified that the accumulations under the cable reel were in active workings

because “[t]his is a producing unit.” Tr. 928. Fazzolare further explained that at some

unspecified time after he issued the Citation, he revisited the unit and it was running coal. Tr.

952-53. Fazzolare confirmed that the accumulations were black in color, indicating that they had

not been mixed with rock dust to lower combustibility. Tr. 928. The accumulations extended

about one to 1.5 inches under the cable reel and about two feet wide. Tr. 925-26. Fazzolare

testified that once the cable reel was full of cable, the cable would be rolling in the

accumulations creating a frictional heat source that could ignite the accumulations. Tr. 926-27. 

In addition, Fazzolare testified that he was concerned about the high temperature oil which was

present and also combustible. Tr. 928.

Fazzolare testified that the production unit was idle at the time of his inspection and had

been idle for a week. Tr. 934; 952. Fazzolare conceded that under normal circumstances, there

would be no power on the roof bolter when the unit was not operating. Tr. 954. Cummins

confirmed this. Tr. 981. The Secretary failed to establish that there was power on the cable. 

Even when the unit was idle, the cable reel and cable were subject to a thorough

permissibility examination on a weekly basis, including cleaning and washing out of

accumulations, if necessary. Tr. 954, 968-69, 979. Such cleaning also occurred, as needed. Tr.

980-81. The last weekly examination was performed on August 28, 2011, six days prior to the

citation and within the weekly period. Tr. 968; R. Ex. 90. 

b. Legal Analysis

I find a violation of section 75.400. I credit Fazzolare’s testimony about the nature of the

accumulations in lieu of Cummins’ testimony and find that accumulations of coal, oil and float

coal dust were present under the cable reel of the Fletcher roof bolter. Tr. 924. Although

Cummins testified that there was no float coal dust present and the material was moist, I

discredit this testimony, particularly since the pinner had not been washed, at least since the last

examination almost a week earlier. 

36 FMSHRC Page 1707
20 Although Fazzolare testified that he was concerned about a fire and not an explosion, I

agree with the Respondent that the non-defective permissible equipment was unlikely to

propagate an explosion because no exposed energized ignition sources were present, no sparks

were capable of emission, and the jacket of the shielded cable was made of quarter-inch-thick

pliable rubber. Tr. 967. 

I further find that the accumulation violation under the cable reel of the roof bolter was in

an active working, even though the production unit was idle for about a week, because miners

continued to work or travel in the unit for maintenance and inspection purposes. Cf.

Consolidation Coal Co., 20 FMSHRC at 348-49. 

On the other hand, I find that the violation was not S&S under the third prong of the

Mathies test because the violation did not contribute to a hazard that was reasonably likely to

result in a mine fire. When evaluating an S&S designation related to the reasonable likelihood

of a fire, ignition, or explosion, the Commission examines the “confluence of factors” present

based on the particular facts surrounding the violation. Amax Coal, 19 FMSHRC at 848 (citing

Texasgulf, 10 FMSHRC at 501). These factors include the extent of accumulations and the

presence of possible ignition sources, the presence of methane, and the type of equipment in the

area. Maple Creek, 22 FMSHRC at 755 (citing Enlow Fork, 19 FMSHRC at 9). 

The unit was idle at the time of the inspection and no power was energizing the roof

bolter. Tr. 952. Therefore, an ignition would not have occurred. Even when production and

power was restored during continued mining operations, no ignition source was established that

was reasonably likely to result in a mine fire. The bolter was maintained in permissible

condition.20 Although Fazzolare testified that he “could have missed” a pinhole defect in the

cable, he found no defects with the insulated cable. In fact, Fazzolare performed a full

inspection of the pinner and its cable and issued no citations. Moreover, the electric shock that

Fazzolare experienced through a pinhole when he was a bolter occurred on a different type of

bolting machine that lacked a shielded cable. Finally, Fazzolare provided an insufficient

evidentiary foundation for his summary conclusion that if the cable reel was full during bolting,

a pinhole would ignite the float coal dust or coal and the miners would be exposed to smoke

inhalation from the fire, resulting in lost work days or restricted duty. 

Similarly, I reject the argument that the cable reel would likely serve as a frictional heat

source. I have discredited Fazzolare’s testimony that he observed the cable rolling in the

accumulations and found that this was mere speculation as to what he thought would occur when

the cable was recoiled during the retraction process. By contrast, I am more persuaded by

Cummins’ testimony that the retracting the cable would not rub in the accumulations because a

tape ball was designed to prevent overloading beyond the sides of the cable reel. Furthermore,

the Secretary relies on little more than Fazzolare’s conclusory belief that the bolter could

produce heat sufficient to produce an ignition. That belief is unsupported by fact on this record. 

Rather, I credit Cummins’ testimony that the slow movement of the cable back onto the reel at

about 35 feet per minute would generate insufficient frictional heat to start a fire. 

36 FMSHRC Page 1708
In sum, based on the particular facts surrounding this violation, the Secretary has failed to

prove that an injury-causing event was reasonably likely to occur. Accordingly, I find that the

violation was not S&S. 

 I reduce Respondent’s negligence from high to moderate. Although Fazzolare testified

that there were no mitigating factors provided to him when he wrote the citation, Respondent

established some at trial. The design of the roof bolter and the location of the accumulations

made detection difficult. Although Fazzolare was led on cross examination to testify that the

violation was obvious, I discredit this testimony because the testimony from Cummins and the

photographs in evidence establish that the reel compartment was not readily visible and was

protected by bolted covers and by a guard. Furthermore, one would have to get down and peer

through the guides to observe the accumulations. Tr. 959-960, 964, 974, 977, 981-82; R. Ex.

87(a). Finally, since the unit was idle, it was less likely that an examiner would discover the

condition until production resumed and the bolted covers were removed by a rank-and-file bolter

operator during his examination and cleaning. That weekly examination was not yet due at the

time the citation was written. Accordingly, I find sufficient mitigating circumstances to reduce

Respondent’s negligence to moderate. 

Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings

above, I assess a penalty of $807. 

4. Citation No. 8436403

The Secretary argues that Respondent violated§ 75.400 because there were

accumulations of float coal dust in crosscut 100 on the main west travel way. The Secretary

claims that the violation was S&S because it was reasonably likely to lead to lost workdays or

restricted duty to one person, and was the result of high negligence because Respondent should

have known about the condition and offered no mitigating circumstances. 

Respondent argues that the S&S and high negligence designations are inappropriate and

that the regularly assessed proposed penalty of $13,268 is excessive. 

a. The Alleged Violation

On October 19, 2011, inspector Fazzolare, accompanied by Respondent’s compliance

supervisor, Vernon Dunn, issued 104(a) Citation No. 8436403 alleging a violation of 30 C.F.R. §

75.400, as follows:

There were paper thin to approximately 1/16 accumulations of float

coal dust in XC 100 on the Main West travelway, these

accumulations were rib to rib, on the ribs and on the 1200 volt

energized power center, on the overhead light, on both cat heads and

on the switch box.

36 FMSHRC Page 1709
This is the 267th violation of this standard at this mine since

10/20/2009.

P. Ex. 43. The citation was designated S&S, reasonably likely to result in a lost workdays or

restricted duty injury to one person, and the result of high negligence.

Fazzolare observed combustible and volatile accumulations of float coal dust out by

active workings on a 1200-volt energized power center, and on the permissible overhead light,

and the cat heads and switch box located at crosscut 100 in the Main West travelway, which

paralleled the Main West No. 2 belt. Tr. 988, 990-93, 1010, 1015, 1022, 1024; P. Exs. 43, 44. 

The floor of the Main West travelway was composed of gray clay-like material, and there was

approximately three to four inches of rock dust on the floor of the cited area. Tr. 1023-24. Dunn

testified that the float coal dust could have come from the running belt or the roadway. Tr. 1026-

27. 

The accumulations were paper thin to one-sixteenth of an inch thick and found in an area

that had been rock dusted previously. Tr. 989; P. Ex. 45, at 7. Fazzolare was concerned with the

accumulations of combustible material on top of the rock dust. Tr. 1013. Fazzolare testified that

in the event of a fire, the float coal dust would burn off and fuel the fire. Tr. 989. 

There were some accumulations on top of the transformer, but not inside the transformer. 

Tr. 1008, 1025. No citations were issued with respect to the transformer or overhead lights. Tr.

1026. There was no methane in the area. Tr. 1029. 

Based on his experience and the extent of the accumulations, Fazzolare determined that

the cited condition existed for more than one shift, and likely did not arise after the last pre-shift

examination. Tr. 995-96; 1033. Dunn confirmed this. Tr. 1027, 1033. 

Fazzolare designated the violative condition as S&S because there were several ignition

sources present around the highly volatile fuel source, which exposed an examiner or

maintenance person working on the power center to the hazard of a fire, which was reasonably

likely to result in lost workdays or restricted duty due to smoke inhalation. Tr. 994-95; P. Ex.

43. 

Fazzolare also determined that the violation resulted from high negligence given the large

number of section 75.400 citations that Respondent was issued, and because the cited area was

supposed to be pre-shifted every eight hours. Tr. 996. Although Fazzolare testified that he was

not shown any pre-shift inspection reports indicating that the area had been examined, he did not

write any citation for failure to conduct a pre-shift under section 75.360. Tr. 991-92, 996. 

Fazzolare testified that the condition was obvious and should have been noted by the pre-shift

examiner and by any maintenance personnel or foreman, who entered the area. Tr. 996-97,

1015. Fazzolare did not recall management providing any mitigating circumstances. Tr. 999. 

His notes, however, indicate that Dunn told him that he did not think there was a hazard present. 

P. Ex. 45, at 7. 

36 FMSHRC Page 1710
Dunn testified that he told Fazzolare that the citation should not be written because the

condition did not present a hazard given the amount of rock dust present and the absence of any

ignition source. Tr. 1028, 1037-38. According to Dunn, Fazzolare responded that the

transformer constituted the ignition source. Tr. 1038. 

Fazzolare testified that the citation was terminated twenty minutes after issuance when

Respondent’s agent mixed the float coal dust with the existing rock dust in the area to lower

combustibility, and also wiped off the switch box and overhead light. Tr. 999, 1014. Dunn

testified that the abatement process lasted “probably ten minutes.” Tr. 1025. Dunn testified that

the rock dust on the floor was so deep that it was just kicked around with his feet and a broom. 

Tr. 1025. Dunn further testified that when he cleaned off the top of the transformer, he felt

nothing but “body temperature-type heat” of about 100 degrees, which he opined was

insufficient to cause any sort of ignition. Tr. 1025-26, 1029. 

Fazzolare did not testify with any specificity about the overhead light mentioned in the

citation. Dunn testified that it was a fluorescent-type light with a plastic cover, and that he did

not recall seeing float coal dust on the light bulb, or cleaning or wiping off the light bulb or its

cover. Tr. 1032-35. 

b. Legal Analysis

I find a violation of section 75.400. Respondent permitted paper thin accumulations of

float coal dust from rib to rib in the Main West travel way at cross cut 100, and on the

transformer, overhead light, cat heads and switch box located at this location. Section 75.400

provides that “[c]oal 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.” 

Essentially for the same reasons set forth above with respect to Citation No. 8428798, I

find the violation set forth in Citation No. 8436403 to be non-S&S. The float coal dust

accumulations on top of the coal transformer did not contribute to a discrete fire hazard that was

reasonably likely to result in a serious injury. Under continued normal mining operations, it is

unlikely that the paper thin layer of coal would cause the transformer to reach a temperature of

300 degrees, which was enough to ignite the coal dust. Accordingly, the S&S designation is

removed. 

I affirm the high negligence designation. The Secretary established that Respondent

should have known of the condition. I reject Respondent’s argument that it is unlikely that the

condition came into existence since the last pre-shift examination because it was located near an

active belt line and travel way. I note that Dunn, Respondent’s own witness, confirmed

Fazzolare’s testimony that the condition likely existed at the time of the last pre-shift

examination. Furthermore, I discount the argument that a mine examiner would not have

regarded the condition as hazardous and reportable. Although Dunn told Fazzolare that he did

not think there was a hazard present, particularly given the amount of rock dust present and the

36 FMSHRC Page 1711
21 For three years prior to the hearing, MSHA inspector Kane worked as a coal mine

inspector and collateral duty special investigator in the Benton, Illinois field office. Tr. 560-62. 

Prior to joining MSHA, Kane worked in the industry for about nine years as an outby laborer,

examiner, face boss, ram car operator, roof bolter, and scoop operator. Kane possesses state

mining examiner and mine manager certifications and ninety-six hours of electrical training. Tr.

560-61. Kane was the lead inspector at WLPM in early 2012 and visited the mine almost every

day. Tr. 563.

absence of any ignition source, these are not mitigating circumstances because the amount of

rock dust on the floor did not mitigate the float coal dust on the transformer, cat heads and

overhead light, which are potential ignition sources capable but not likely to result in a mine fire. 

In sum, the high number of past violations of section 75.400, the fact that Respondent had notice

that accumulations were at issue at the mine, the fact that the condition should have been

recorded, but was allowed to exist for at least one shift, and the absence of persuasive mitigating

circumstances support my finding of high negligence. 

Guided by the regular assessment criteria set forth in § 100.3 as applied to my findings

above, I assess a penalty of $2,678. 

C. Maintenance of Incombustible Content of Rock Dust Order No. 8428378

1. Order No. 8428378

The Secretary alleges that the Respondent violated section 75.403 because the mine floor

in entry no. 6 of MMU 011 did not contain enough rock dust to achieve 80% non-combustible

content. The Secretary further alleges that the violation was unlikely to result in injury, but if

injury did occur, it would be fatal, with sixteen persons affected. The Secretary further alleges

Respondent’s high negligence and unwarrantable failure to comply with the standard. 

Respondent argues that the Order should be vacated because it was based on samples

taken from discrete piles of material that were not representative of the entry floor. Respondent

also challenges the gravity, high negligence, and unwarrantable failure designations, and the

appropriateness of the specially assessed proposed penalty of $45,000.

a. The Alleged Violation 

During an E02 spot inspection on June 20, 2011, inspector Eddie Kane,21 accompanied

by Respondent’s representative Mike Cummins and miner’s representative Ron Pinkston, issued

section 104(d)(2) Order 8428378 for a violation of 30 C.F.R § 75.403. Tr. 564, 567; P. Ex. 34. 

Section 75.403 states: 

Where rock dust is required to be applied, it shall be distributed upon

the top, floor, and sides of all underground areas of a coal mine and

maintained in such quantities that the incombustible content of the

36 FMSHRC Page 1712
22 Entry no. 6 was about twenty feet wide and was used as a haulage road for the left side

of the unit to haul coal from face to the feeder. Tr. 656, 658. 

23 I credit this specific testimony from Kane. Although Cummins testified that he did not

recall observing any ram cars drive through entry 6 and he did not observe any “rock dust” in

suspension, Cummins confirmed that the accumulations were present on the mine floor along the

two ribs because ram cars would rub against and grind material off the rib as they turned into the

crosscut. Tr. 667-68. I also note that section foreman Blaine Shires observed ram cars running

in entry 6 that day, but by the time Shires reached the area, Kane had already shut it down. Tr.

718-19. 

combined coal dust, rock dust, and other dust shall not be less than

80 percent. Where methane is present in any ventilating current, the

percent of incombustible content of such combined dust shall be

increased 0.4 percent for each 0.1 percent of methane.

The Order was designated non-S&S, unlikely to result in a fatal injury to sixteen persons,

and the result of high negligence and an unwarrantable failure. P. Ex. 34. As a result of this

Order, the area was closed off, and no other activity was allowed to proceed through the area. 

Tr. 700. 

The Order issued at 10:30 a.m., when the unit was in full production running coal. P. Ex.

34; Tr. 592, 656. The shift began at 7:15 a.m. The first coal run was made at 8:05 a.m. Tr. 706;

R. Ex. 25. Three cuts had been taken on the left side of the unit, at the 9 left crosscut, entry no. 9

and entry no. 8. Tr. 706-07; R. Ex. 25. Typically, three coal haulers on the left side of the unit

used entry no. 6 to go to the feeder. Tr. 669. The ram cars made about 60-80 trips from face to

feeder per shift. Tr. 669. 

Kane testified that upon arriving at Unit 1 entry no. 6, Kane observed a lot of coal dust

and float coal dust all over the entry and obvious to the casual observer. Tr. 565-66, 592.22

Kane had to stop and wait for a ram car to pass through the area. Kane noticed that the ram car

was kicking up a lot of black coal dust and suspending it in the atmosphere. Tr. 566, 577.23 

Kane then walked further into entry 6, which was off the 2nd right panel from the 5th north

main, and he noticed that this condition was extensive between survey station 10 + 75 and 12 +

35. Tr. 566. Kane took two floor samples from the area where the violative condition existed. 

Tr. 580-81, 583. Kane took photographs, measurements, and two spot samples about 160 feet

apart across the entire entryway. Tr. 577-79, 584-85; P. Ex. 35-37. The piles of coal sampled

on the return side ribs were 18-24 inches wide, and six to ten inches deep. Tr. 578-79, 584; P. 

36 FMSHRC Page 1713
24 Cummins, who did not take measurements, recalled that the accumulations were about

six inches deep. Tr. 662; P. Ex. 35; P. Ex. 36, at 3. Cummins further testified that the length of

the condition was about 150 feet, excluding the length of the crosscut in the measurement. Tr.

666-67. 

Ex. 35; P. Ex. 36, at 3.24 The piles that were cited extended approximately 18-24 inches in width

from the left rib line into the entry. Tr. 578-89, 615-16; P. Ex. 35; R. Exs. 23(i), 23(k), 23(w). 

Cummins and Shires credibly testified, as corroborated by photographic evidence, that the piles

were created when ram cars struck the ribs as they turned into the crosscut toward the feeder. Tr.

658, 668, 678, 708-09; R. Ex. 2, at 15-18; R. Ex. 23(a); R. Ex. 23(x). Cummins also explained

that the miner cable was present on the opposite side of the piles, which would cause the

operators to “hug farther to the left-hand rib to stay off the cable.” Tr. 669-71. 

Kane testified that the accumulations occurred over a period of time, which he estimated

to be about two shifts, excluding the current one. Tr. 586. Although section foreman Shires

testified that entry no. 6 was regularly scooped at least once per shift to clean spillage along the

haulageway (Tr. 710), Respondent proffered no specific testimony or documentary evidence that

entry no. 6 was scooped and/or rock dusted on the prior two shifts. By contrast, Kane’s notes

indicate that the condition has existed for at least two shifts since it appears that the

accumulations came from overloaded ram cars dropping excess coal on the haul road, and then

continually running over the coal until it was ground into a fine powder and pushed to the rib

line by the wheels of the ram car. P. Ex. 36, at 3. In these circumstances, I credit Kane’s

empirical estimate that the accumulations existed for about two shifts. Tr. 586. 

 Cummins did not witness Kane take a sample across the entire width of the mine floor. 

Tr. 680. Cummins and Shires confirmed that Kane took two samples, although Cummins and

Shires only witnessed Kane take one spot sample from the rib area floor. Tr. 680-82, 691-92,

715-16. Cummins specifically raised an objection with Kane about the manner in which Kane

was taking his sample. Tr. 692. Cummins also recorded his observation in documentation that

he completed immediately after the inspection. Tr. 683; R. Ex. 19. Cummins noted, “[t]he

inspector only collected a sample of the coal that was spilled.” R. Ex. 19. Neither Cummins nor

any other representative of Respondent took a sample of their own. Tr. 689, 697.

For each sample taken, Kane received lab results indicating that the incombustible

content of the rock dust was non-compliant. One sample contained 43.4% incombustible

content, the other 48.1%. Tr. 585, P. Ex. 37. Per section 75.403, each sample should have had

80% incombustible content. Tr. 586. 

Kane testified that MSHA’s policy on rock dust sampling is dependent on the area where

the sample is taken and the ability to take a representative sample of the area. Tr. 580-82. 

Where possible, MSHA procedures typically require the taking of a band sample from the roof,

ribs, and floor, but MSHA’s inspection procedure manual does not indicate that a band sample is

mandatory. Tr. 588-89; P. Ex. 58. The ribs and roof had been rock dusted with a wet duster and

were a whitish color. Tr. 582, 618, 667; P. Ex. 35. Kane did not include any of the rock dusted

surfaces from the roof or ribs in his samples. Tr. 680. 

36 FMSHRC Page 1714
25 Kattenbraker testified that float coal dust must be extremely dense to ignite, without

methane, such that visibility would be less than two feet. Tr. 640-41. 

Kane testified that he took two floor samples from the area where the violative condition

existed. Tr. 580-81, 583. He testified that the rib had wet rock dust on it and the floor away

from the ribs was very hard and there was not enough material to sample down an inch and 

“cone and quarter.” To obtain a representative sample, Kane used a floor brush and a dust pan to

brush 1/8 to 1/4 inch across the surface of the entry floor from rib to rib. Kane then ran the

sample through his 20-mesh sieve and tagged the entire sample to be sent to the lab for testing. 

Tr. 581-82. 

As noted, Cummins and Shires testified that they did not observe Kane take a sample

from across the entire width of the floor, but they each observed one sample at survey station

10+85. Tr. 679-80, 682, 709, 718. In any event, I credit Kane’s testimony, confirmed on cross

examination, that he used a floor brush and a dust pan to brush across the surface of the entry

floor from rib to rib. Tr. 616-17. Accordingly, I find Cummins’ testimony – that the floor in the

entry consisted of incombustible fire clay, other than the piles cited – to be an overstatement that

does not account for coal dust across the entry. Tr. 667. 

Respondent’s witness Steve Kattenbraker, a former MSHA field office supervisor and

current contractor for parent Peabody Energy, confirmed that while a band sample from floor,

rib, and roof may be preferable, an inspector could take a sample representative of the entire

floor, and if such sample cannot be taken an inch down, the inspector should brush what he can

off the floor. Tr. 635-39, 642-45. Further, safety compliance supervisor Danny Bishop testified

regarding Citation 8428798 that Respondent has only taken floor samples, not band samples,

when the floor was the area cited. Tr. 867, 869-70. Finally, based on prior sampling experience

from ribs after wet-dry dusting, Kane testified that a band sample that included the ribs and roof

would have been less representative of the violative condition and put even more combustible

material into the sample. Tr. 626-29. 

Kane determined that no methane was present in the air course in entry no. 6, and that the

methane at the face was not high and measured 0.2%. Tr. 588, 620; P. Ex. 36, at 2. Kane further

determined that a coal dust explosion was unlikely and the violation was non-S&S. Tr. 590.25

Kane also testified, however, that the left-side miner was used in the entry, and cutting torches or

welding equipment may be brought into the area, thereby introducing an ignition source

necessary to trigger an explosion. Tr. 590-91, 621. Kane determined that in the unlikely event

of a coal dust explosion, injury would be fatal, and all sixteen miners working inby would be

killed. Tr. 590-94; P. Ex. 36.

Kane testified that Respondent had failed several rock dust surveys in the past and that

Respondent’s management was repeatedly told during closeout conferences that it needed to

comply with the standard and get the mine rock dusted, or there would be increased enforcement. 

Tr. 571. Kane also testified about fatalities in mines because of inadequate rock dusting and that

such fatalgrams are posted on MSHA’s website and hand-delivered to mine operators upon

issuance. Tr. 572-73; P. Exs. 50-51. Kane further testified that MSHA provides bulletins to

36 FMSHRC Page 1715
operators to educate them on proper rock dusting and ventilation maintenance to keep methane

away from the faces in an effort to prevent explosions and fires, especially during winter months. 

Tr. at 574; P. Ex. 52. 

Kane determined that Respondent’s violation resulted from high negligence because

Respondent had been warned repeatedly to increase rock dusting, and the condition was open

and obvious to face bosses, who were required to walk through the entry to reach the working

section and its face for on-shift examination purposes. Tr. 591-92. Kane further determined that

the violation was an unwarrantable failure to comply with the rock dusting standard because the

condition was obvious and extensive and the face bosses should have known that it existed. Tr.

594. 

Abatement efforts, which involved scooping the area and rock dusting the floor, took

about an hour. Tr. 595. 

b. Legal Analysis

I find a violation of section 75.403. Section 75.403 requires that the incombustible

content of the rock dust be no less than 80%. 30 C.F.R. § 75.403; Tr. 568-69. The Secretary’s

unrebutted sample evidence shows that both samples were non-compliant; one sample contained

43.4% and the other 48.1% incombustible content, well below the 80% incombustible content

requirement. 

Respondent argues that observations alone are insufficient to support a section 75.403

violation, and that the violative samples taken from isolated coal spills are not evidence of

inadequate rock dusting. Rather, Respondent argues that the samples must be taken from

representative areas of the mine floor rather than from areas where discrete coal accumulations

are located. Accordingly, Respondent argues that Order No. 8428378 should be vacated because

it is premised upon samples that were taken from discrete piles of material that were not

representative of the floor in entry no. 6. 

I reject Respondent’s arguments. The standard does not require the taking of band

samples. Cf. Eighty-Four Mining Co., 22 FMSHRC 690, 698 (2000) (ALJ). In addition, I have

credited Kane’s testimony that he used a floor brush and a dust pan to brush across the surface of

the entry floor from rib to rib in order to take a representative floor sample. Finally, the

testimony from Kane and Respondent’s witnesses establishes that the sampling methodology

employed to obtain representative samples was reasonable given the nature and location of the

accumulations along the rib. 

I further find that the violation was the result of high negligence. The record establishes

that the coal dust accumulations in entry no. 6 were open and obvious to face bosses, who were

required to walk through the entry to reach the working section and its face for on-shift

examination purposes. Tr. 565-66, 591-92. In addition, Respondent had been admonished

repeatedly during close out conferences to enhance rock dusting at the mine. Tr. 571. Finally,

36 FMSHRC Page 1716
Respondent proffered no evidence of mitigating circumstance other than its challenge to

sampling methodology, rejected above. Tr. 595-96. In sum, the fact that Respondent had

knowledge of rock dusting inadequacies and did not take facile steps to become compliant

supports a high negligence finding. 

Although the issue is close, I further find that the violation was an unwarrantable failure

because there is sufficient evidence of aggravated conduct constituting more than ordinary

negligence and a serious lack of reasonable care. As noted, “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 before citation, whether the violation was

obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the

violation. IO Coal, 31 FMSHRC at 1350-51.

Initially, I find that the violative condition was fairly extensive. Both piles of material

were twenty-four inches in width from the ribline, about six to ten inches deep, and were about

160 feet apart in the no. 6 entry. More importantly, the first sample was about 46% noncompliant and the second sample was about 40% non-compliant. Furthermore, Kane credibly

testified that the coal dust and float coal dust was present all over the entry. In these

circumstances, even though the condition was abated in about an hour by scooping and rock

dusting, I find that the extensiveness factor tips in favor of an unwarrantable failure finding.

I have credited credit Kane’s testimony that the condition existed for about two shifts,

despite general testimony from Respondent that entry no. 6 was regularly scooped at least once

per shift. Two shifts is definitely a period of time long enough to require that action be taken to

eliminate the violative condition. Cf., Windsor Coal Co., 21 FMSHRC 997, 1002 (Sept. 1999);

see also Buck Creek Coal, 52 F.3d 133, 136 (7th Cir. 1995) (finding unwarrantable failure where

cited accumulation must have been present at least since the previous shift). Accordingly, I find

that the duration of the violation for about two shifts weighs in favor of finding an unwarrantable

failure.

I have also credited Kane’s testimony that Respondent repeatedly was placed on specific

notice during closeout conferences that greater efforts were necessary for compliance with rock

dusting standard section 75.403, or increased enforcement would result. Although Respondent

notes that it was assigned only two repeat violation history points for Order No. 8428378 (R. Ex.

28), this fact confirms that Respondent had at least six recent violations of the same standard in

the past fifteen months, and bolsters rather than undermines Kane’s testimony that greater

compliance efforts were necessary. Respondent did, however, make some efforts to comply with

the rock dust requirement as demonstrated by the fact that the roof and ribs of entry #6 were

adequately rock dusted and Respondent was supposed to regularly scoop the haulage way once

per shift. Tr. 583, 630, 710. Accordingly, this factor tips slightly in favor of an unwarrantable

failure finding. 

36 FMSHRC Page 1717
With regard to whether the condition posed a high degree of danger, Kane determined

that a coal dust explosion was unlikely and the violation was non-S&S. Tr. 590. No ignition

sources were present. There was no methane in the air course in entry no. 6 and negligible

methane at the face. Tr. 588, 620; P. Ex. 36, at 2. It is undisputed that the roof and ribs of entry

no. 6 were adequately rock dusted. The Secretary’s own documentation on explosions and rock

dusting awareness states that “[f]loat coal dust on the ribs, roof, and other elevated surfaces

(overhead dust) can be dispersed much more readily by an explosion than dust on the floor.” P.

Ex. 53, at 2. In these circumstances, despite Kane’s testimony that in the unlikely event of a coal

dust explosion, injury would be fatal and all sixteen miners working inby would be killed (Tr.

590-94; P. Ex. 36), I find that the remote possibility of a high degree of danger weighs against an

unwarrantable failure finding. 

The record establishes that the violative condition was open and obvious. Upon arriving

at Unit 1 entry no. 6, Kane observed a lot of coal dust and float coal dust all over the entry and

open and obvious to the casual observer. Tr. 565-66, 592. The piles of coal sampled on the

return side ribs were 18-24 inches wide, and six to ten inches deep, and the dust extended

approximately 160 feet across the entry. Tr. 578-79, 584; P. Ex. 35; P. Ex. 36, at 3. The piles

that were cited extended approximately 18-24 inches in width from the left rib line into the entry. 

Tr. 578-89, 615-16; P. Ex. 35; R. Exs. 23(i), 23(k), 23(w). Accordingly, the obviousness factor

supports an unwarrantable failure finding. 

The operator had knowledge of the condition or at least should have known about it. 

Both management representatives Cummins and Shires were aware that ram cars traveling

through the entry would strike the ribs, resulting in accumulations. Tr. 658-59, 672, 709. As

noted, I have credited Kane’s empirical estimate that the accumulations existed for about two

shifts. Tr. 586. Thus, face bosses, who were required to walk through the entry to reach the

working section and its face for on-shift examination purposes, should have noted and corrected

the condition prior to the inspection. Tr. 591-92, 594. Accordingly, the knowledge factor

supports finding an unwarrantable failure. 

Finally, an operator’s efforts to abate a violation are relevant to an unwarrantable failure

determination. Thus, where an operator has been placed on notice of a problem, the level of

priority that the operator places on abatement of the problem is relevant. IO Coal, 31 FMSHRC

at 1356 (citing Enlow Fork Mining, 19 FMSHRC at 17). The focus is on abatement efforts made

prior to issuance of the citation or order. Id.

Concededly, Respondent made some efforts to rock dust to maintain the requisite

incombustible content required by the standard. Nevertheless, even though Respondent did

attempt to make efforts to eliminate section 75.403 violations generally, this evidence is not

dispositive of the specific unwarrantable failure allegation at issue. Where an operator has actual

knowledge of a violative condition, the Commission has considered the operator’s abatement

efforts of the specific violation in question. See Consolidation Coal, 22 FMSHRC at 330-33;

Windsor Coal, 21 FMSHRC at 1005-07. As noted, both management representatives Cummins

and Shires were aware that ram cars traveling through the entry would strike the ribs, resulting in

36 FMSHRC Page 1718
accumulations. Further, the accumulations existed for about two shifts and the face bosses

examining the working section and face should have corrected the condition prior to the

inspection. Accordingly, I conclude that Respondent failed to make adequate efforts to abate the

known violation prior to its issuance. Respondent’s inadequate abatement efforts also support an

unwarrantable failure finding. 

On balance, after considering and weighing the relevant Commission factors, I conclude

that all of the factors except the high degree of danger factor support a finding that the violation

in Order No. 8428378 was the result of Respondent’s unwarrantable failure to comply with

section 75.403. Moreover, even that factor had a remote possibility of a high degree on danger. 

Accordingly, I find an unwarrantable failure violation for Order No. 8428378.

Although the Secretary adduced no specific evidence or rationale to justify the special

assessment in this matter, Respondent did so by introducing the Special Assessment Narrative

Form received in evidence as R. Ex. 28. Given my high negligence and unwarrantable failure

findings, I find that a specially assessed penalty was warranted here. Accordingly, guided by the

criteria set forth in § 100.3 and the Special Assessment General Procedures, I assess a penalty of

$45,000. 

D. The September 12, 2011 Impact Inspection and the Alleged Violation of § 103(f)

Walkaround Rights Regarding Citation Nos. 8431250, 8431251, and 8431252

1. Commission Precedent in SCP Investments

In SCP Investments, the Commission recognized that the qualified walkaround rights set

forth in Section 103(f) of the Mine Act are mandatory, but their erroneous denial provides no

basis for vacating citations or orders. SCP Invs., LLC, 31 FMSHRC 821 (2009). The

Commission did not address the complex constitutional issue of whether a violation of the Due

Process Clause of the Fourteenth Amendment would defeat the final clause of Section 103(f),

which bars vacation of a citation or order for failure to comply with Section103(f) requirements. 

Respondent has raised that constitutional due process argument here. R. Br. at 76-78.

In SCP Investments, Commissioners Young and Cohen directed Commission judges to

hold a suppression hearing and apply an exclusionary rule under which evidence obtained in

violation of an operator’s walkaround rights may be excluded when an operator can demonstrate

prejudice in the preparation or presentation of its defense. 31 FMSHRC at 834-37. Chairman

Jordan dissented and found that safety violations observed in contravention of walkaround rights

do not constitute evidence obtained by virtue of an illegal action such as a violation of the Fourth

Amendment’s protection from unreasonable searches and seizures. She found it improper for the 

36 FMSHRC Page 1719
26 Former Chairman Duffy found a suppression hearing unnecessary and would allow the

judge during the crucible of a hearing to determine the existence and extent of prejudice when

determining a violation and the appropriate penalty in the context of citations written after

improper denial of walkaround rights on mine property. SCP Invs. LLC, 31 FMSHRC at 838-40. 

judge to consider denial of walkaround rights in deciding whether the Secretary established a

violation. Id. at 841-45. Commissioners Nakamura and Althen have not yet passed on the

issue.26

Against this backdrop, the undersigned heard testimony from one company representative

(Crit Stephenson) and three MSHA inspectors (Robert Hatcher, Larry Morris, and Phillip

Stanley) regarding an impact inspection on September 12, 2011. Respondent argues that three

citations – Citation Nos. 8431250, 8431251, and 8431252 – which inspector Hatcher wrote

during that impact inspection when he walked a beltline unescorted, violated its walkaround

rights under section 103(f) of the Mine Act. 

The issues presented are whether Respondent’s section 103(f) walkaround rights were

denied with respect to the three citations issued by inspector Hatcher. If so, what is the 

appropriate remedy for such denial under extant Commission precedent? If not, did the

violations occur as alleged, and what are the appropriate gravity and negligence findings and the

appropriate penalties? 

For the reasons set forth below, I find that Respondent’s walkaround rights were violated

during the instant impact inspection and I apply an exclusionary rule that examines whether

Respondent has shown prejudice in its ability to observe the condition, as cited. Applying this

analysis, I exclude all evidence in support of Citation 8431251, which resulted from the

unescorted inspection, including the Secretary’s photographs and Hatcher’s testimony, and I find

insufficient independent evidence to support that citation and the proposed penalty. Similarly,

with regard to Citation No. 8431250, I also find that Respondent has been prejudiced by its

inability to observe and challenge Hatcher’s chemical test and his testimony based on that test. 

Accordingly, I exclude such evidence and conclude that there is insufficient evidence to support

a violation of the cited standard. Finally, with regard to Citation No. 8431252, I find that

Respondent has not been prejudiced by Hatcher’s testimony or the photographs he took

concerning this violation because Respondent could go back and check the belt alignment and its

contact points with the brackets and stands after notice of the violation, and Respondent could

observe the violation in essentially the same condition as inspector Hatcher observed it. 

Accordingly, I affirm that citation as non-S&S because it was unlikely to result in a lost

workdays or restricted duty injury, with one person affected. I also affirm Hatcher’s high

negligence determination. Although Respondent was denied an opportunity to timely proffer

mitigating circumstances to the inspector, Respondent was given an opportunity but failed to

raise any mitigating circumstances after the fact and at trial. Accordingly, guided by the regular

assessment criteria set forth in § 100.3(a) as applied to my findings above, I assess a penalty of

$1,203. 

36 FMSHRC Page 1720
1. Suppression Hearing Facts

On September 12, 2011, five MSHA inspectors arrived at WLPM to perform an impact

inspection during the middle of the afternoon shift about 6:30-7:00 p.m. During that impact

inspection, MSHA inspector Hatcher issued Citation Nos. 8431250, 8431251, and 8431252 at

issue herein. Tr. 415, 421-22, 436, 468; P. Exs. 9, 10, 12. 

Outby foreman Crit Stephenson had just transported a sick miner to the surface when he

encountered MSHA field office supervisor Steve Miller and assistant district manager Mary Jo

Bishop at the staging area of the bath house. Tr. 413-15. Miller was the lead MSHA supervisor

for the WLPM. Tr. 496. Miller told Stephenson that MSHA was conducting an impact

inspection and instructed him not to contact anyone or make any phone calls and to transport

three inspectors (Hatcher, Morris, and Stanley) underground to different locations. Tr. 415. 

Neither Miller nor Bishop testified at the hearing and the Secretary has adduced no

evidence to rebut Stephenson’s account of Miller’s directive. Ordinarily, Stephenson would

have obtained company escorts for each inspector, but he did not in this instance because he was

he was told not to make any phone calls. Tr. 416. 

Stephenson waited until MSHA inspectors Robert Hatcher, Larry Morris, and Phillip

Stanley were ready to be transported underground. Tr. 415, 417, 469. Stephenson testified that

Respondent usually uses a four-man safety ride to travel from the surface to the underground

mine. Tr. 407. That ride left no room for additional escorts. I infer that MSHA knew this since

inspectors were at the mine on a daily basis. 

Inspector Morris testified that MSHA has impact inspections during the middle of a shift

to catch an operator by surprise. Tr. 437. He further testified that when regular inspections are

conducted at the start of a shift, Respondent has escorts waiting to accompany the inspectors, but

MSHA is not required to wait for the escorts. Tr. 438. 

Morris testified that when the inspectors arrived, they were already dressed and ready to

go underground. Tr. 438. They went through the diesel shop area and offered three hourly

miners the opportunity to accompany them as miners’ representatives, but these miners declined. 

Tr. 441. Morris further testified that had there been more salaried employees (management

representatives) present on the surface, they would have been offered walkaround rights as well

because that is normal procedure. Tr. 441, 453. But on cross of Morris, Respondent established

that although other management representatives besides Stephenson were not present, MSHA

was not going to wait around for anyone else. Tr. 456.

Morris’ testimony suggests that during an impact inspection, MSHA takes deliberate

measures to show up mid-shift with several inspectors already dressed and ready to go when it is

likely that most management representatives are already underground or gone for the day. Tr.

432, 452-53, 454-55. Morris further testified that section foremen can often be found

underground on a miner or longwall unit and then offered walkaround rights, but seldom do such

36 FMSHRC Page 1721
representatives take MSHA up on the offer. Tr. 453-54. In this case, however, the impact

inspectors targeted belt lines where foremen normally are not present. Tr. 454. 

Respondent argues that MSHA did not follow its typical procedures under which MSHA

inspectors, several of whom may be present at the large mine on a daily basis, arrive at the

mine’s safety department office prior to the commencement of the shift, announce their presence,

and wait for a company escort and a miners’ representative to accompany each inspector before

beginning the inspection. R. Br. 63 (citing Tr. 405-06, 416, 438). Stephenson testified, and

inspector Hatcher confirmed, that in such circumstances the inspectors would not tell their

escorts where they were going until they left the surface. Tr. 406-07, 494. Stephenson testified,

therefore, that there was no opportunity to provide advance notice of the inspection to miners

working underground. Tr. 409. Stephenson further testified that this arrangement never caused

any problems. Tr. 410. The Secretary did not establish any history of providing advance notice

at the WLPM. 

Hatcher testified that once Stephenson and the three inspectors began traveling inby, they

stopped a vehicle coming out, which had some hourly miners on it, and asked if the miners

wanted to accompany the inspectors. The miners declined and were instructed not to tell anyone

that the inspectors were in the mine. Tr. 484-85. Morris confirmed that miner’s representative

Ron Pinkston was given and declined the opportunity to turn around and follow the inspection

party. Tr. 458-59. 

Eventually, inspectors Morris and Hatcher instructed Stephenson to drop them off at the

4th North and 1st West belt intersection. Tr. 417. Morris inspected the 4th North belt and wrote

three citations that are not at issue, one for unsupported roof in the corner of an intersection on

the belt line; one for a hole in a ventilation stopping; and one because four contract miners did

not have multi-gas detectors. Tr. 457, 460-61. 

After writing these citations without any management representative present, Morris

contacted mine manager, Joel Hughes, because Morris could not leave the contract miners

without multi-gas detectors. Tr. 447-451, 462. When Hughes arrived, Morris informed Hughes

about the three citations that he had written and Hughes went and obtained multi-gas detectors

for the contract miners. Tr. 450-451. Morris then offered Hughes the chance to accompany him

as he walked the rest of the belt, but Hughes declined. Tr. 450. 

As noted, Hatcher inspected the 1st West belt and wrote the three citations at issue,

Citation Nos. 8431250, 8431251, and 8431252, between 9:45 and 10:45 p.m. Tr. 487; P. Exs. 9,

10, 12. In his notes, Hatcher wrote “Declined” in the space used to identify the miners’

representative. But in the space used to identify the company representative, Hatcher wrote,

“Impact Inspection.” P. Ex. 14, at 1. 

36 FMSHRC Page 1722
Citation No. 8431250 alleges a violation of 30 C.F.R. § 75.333(h) and states: 

The Kennedy equipment doors separating the intake (primary escape

way) from the 1st West conveyor belt at cross cut #13 are not being

maintained to serve the purpose for which they were built. The

equipment doors next to the belt conveyor line are damaged. The

west door has a hole at the top of the door 1 inch to 3 inches in width

x 5 feet in length. The east door has a hole along the bottom of the

door and is 12 inches to 3 inches in width x 6 feet in length. Air is

leaking through the bottom and top of the doors to the belt line. This

was determined by chemical smoke.

Standard 75.333(h) was cited 28 times in two years at mine 1103054

(28 to the operator, 0 to a contractor).

P. Ex. 9. The citation was designated non-S&S, unlikely to result in a lost workdays or restricted

duty injury, with one person affected, and the result of high negligence. Id. The proposed

penalty is $873. 

Citation No. 8431251 alleges a violation of 30 C.F.R. § 75.400 and states: as follows:

Accumulation of combustible materials in the form of coal pressing

have been allowed to accumulate under the bottom return roller at

cross cut #37. The bottom return roller is in contact with the coal

pressing and the mine floor. The belt was in service at time of

inspection.

P. Ex. 10. The citation was designated S&S, reasonably likely to result in a lost workdays or

restricted duty injury, with one person affected, and the result of high negligence. Id. The

proposed penalty is $13,268.

Citation No. 8431252 alleges a violation of 30 C.F.R. § 75.1731(b) and states: 

Conveyor belts must be properly aligned to prevent the moving belt

from rubbing the structure or components. The bottom return

conveyor belt on the 1st west conveyor belt line is not properly

aligned and is rubbing the steel bottom roller hanger brackets at the

following locations: 2 bottom brackets at cross cut #5 to cross cut #6,

1 bottom roller bracket at cross cut #6 to cross cut #7, and 2 bottom

roller brackets at cross cut #7. Also the bottom return belt is in

contact with 1 bottom belt stand on the south side of the conveyor

belt at cross cut #10 and at cross cut #37 the bottom return conveyor

belt has bee[n] in contact with the bottom belt stand and has cut

through the steel 2 inch bottom belt stand for a depth of 13⁄4 inches.

36 FMSHRC Page 1723
P. Ex. 12. The citation was designated non-S&S, unlikely to result in a lost workdays or

restricted duty injury, with one person affected, and the result of high negligence. Id. The

proposed penalty is $1,203. 

 The Secretary provided no evidence that Respondent’s representatives were informed of

or learned of the violations written by Hatcher shortly after he observed them. 

Meanwhile, after dropping Hatcher and Morris off, Stephenson continued driving

inspector Stanley inby and dropped him off at the tail of the 2nd West belt. Tr. 418, 469. At that

location, hourly belt shoveler Lonnie Frederickson was present and Stephenson asked

Frederickson to act as a miner’s escort with Stanley. Tr. 418-19. Stephenson then parked at the

head of the 2nd West belt and rejoined Stanley. Tr. 418-420. 

After accompanying Stanley for part of his inspection of the 2nd West belt, Stephenson

subsequently met Hatcher and then Morris, before driving all three inspectors out of the mine. 

Tr. 420-21. On the surface, the inspectors met with the midnight-shift mine manager, Nathan

Genesio, and the midnight-shift miners’ representative, Martin Long, during the closeout

conference. Neither Genesio nor Long raised any issue about denial of walkaround rights. Tr.

463. 

It is undisputed that no company escort or walkaround representative was with Hatcher

when he wrote the three citations at issue during his inspection of the 1st West belt. Tr. 420. 

Respondent argues that this was because Miller told Stephenson above ground that he would not

permit Stephenson to make any phone calls to obtain additional escorts. R. Br. 70-71. The

record establishes that Respondent provides its escorts with training on how to take samples,

heat gun measurements, photographs and notes, and how to gather other information relating to

particular cited conditions. Respondent does this, in part, to facilitate the presentation of

mitigating factors to the inspector, which address gravity and negligence findings in a

citation/order. Tr. 410-413. Of particular relevance, Stephenson testified that if an inspector,

such as Hatcher here, was walking a belt line and found a roller turning in accumulations or a

belt rubbing at the stand, the escort would use a heat gun to determine the temperature of the

frictional ignition source and assess the likelihood of fire. Tr. 411. Similarly, for a rock dusting

or accumulation citation, the escort would take a sample to determine the combustibility content. 

Tr. 411-12. 

By contrast, the Secretary argues that at no time during Hatcher’s inspection did any

management representative seek Hatcher out in an effort to accompany him. P. Br. 66 (citing Tr.

489). In addition, the Secretary emphasizes that Stephenson did not ask to make any phone calls

after he dropped off the inspectors underground, although he had the ability to call anywhere in

the mine. In fact, Stephenson never asked any of the three inspectors whether he could call

additional company representatives to accompany the inspectors once they were in place. P. Br.

64-65 (citing Tr. 424, 444, 470). Respondent notes, however, that Morris and Hatcher began

their inspections as soon as they got off their ride upon arrival at their locations, and based on

36 FMSHRC Page 1724
Morris’s testimony about not waiting on the surface, Respondent argues that the inspectors were

not going to wait for management representatives or escorts to arrive underground. R. Br. 62, at

n. 45, 71, 72 (citing Tr. 456, 495, 500-01).

Morris testified that Stephenson could have made phone calls once the inspectors were in

place because that would not have constituted pre-notification. Tr. 444. Hatcher also testified

that Stephenson could have asked for a management representative to accompany Hatcher on his

inspection. Tr. 485-86. 

Stephenson never indicated to the inspectors that he was upset that more management

representatives were not with him to accompany the inspectors. Tr. 424-25, 444, 470, 485. To

the contrary, Stanley described Stephenson as very amicable. Tr. 470. The Secretary, however,

failed to establish that any inspector advised Hatcher that he could call additional representatives

once the inspectors were in place or extended him the opportunity to do so after Miller issued his

directive on the surface that Stephenson not call anyone. 

2. Legal Analysis

a. No Fourth Amendment Violation is Present

At the outset, I reject Respondent’s argument that any denial of section 103(f)

walkaround rights, by extension, is also a violation of the Fourth Amendment’s protection

“against unreasonable searches and seizures” because the opportunity to accompany inspectors is

critical to the Mine Act’s “inspection program,” which justifies warrantless searches. Cf., New

York v. Burger, 482 U.S. 691, 703 (1987). In Donovan v. Dewey, the Supreme Court held that

warrantless inspections of mines pursuant to Section 103(a) of the Mine Act are not per se

unreasonable and therefore do not violate the Fourth Amendment. 452 U.S. 594, 605 (1981). 

Respondent argues that warrantless inspections, even in the context of a pervasively regulated

industry such as mining, are deemed reasonable only if three criteria are met. Burger, 482 U.S.

at 702 (1987). First, there must be a substantial government interest that informs the regulatory

scheme to which the inspection is made. Id.; Donovan, 452 U.S. at 602. Second, the warrantless

inspection must be necessary to further the regulatory scheme. Burger, 482 U.S. at 702;

Donovan, 452 U.S. at 600. Third, the statute’s inspection program, in terms of the certainty and

regularity of its application, must provide a constitutional substitute for a warrant. Burger, 482

U.S. at 703; Donovan, 452 U.S. at 604-605. 

It is noteworthy that an “impact inspection” is not mentioned in the Mine Act or any

MSHA-promulgated regulation. It is a special initiative following the explosion at the Upper

Big Branch Mine (UBB) to enhance surprise and promote miner safety and health, the

paramount concern of the statute. Monthly impact inspections, which began in force in April

2010 following the explosion at UBB, involve mines that merit increased agency attention and

enforcement due to poor compliance history or particular compliance concerns. These matters

include: high numbers of violations or closure orders; frequent hazard complaints or hotline

calls; plan compliance issues; inadequate workplace examinations; a high number of accidents,

36 FMSHRC Page 1725
27 Respondent’s Fifth Amendment due process arguments are discussed separately below

under the Matthews v. Eldridge paradigm. See 424 U.S. 319 (1976). 

injuries or illnesses; fatalities; and adverse conditions, such as increased methane liberation,

faulty roof conditions, inadequate ventilation and accumulations of respirable dust. See, e.g.,

Press Release No. 13-2103-NAT, MSHA, MSHA Announces Results of September Impact

Inspections (Oct. 31, 2013), available at http://www.msha.gov/MEDIA/PRESS/2013/

NR131031.asp.

Typically, an impact inspection involves multiple inspectors who simultaneously arrive

unannounced at a pre-selected mine site, capture the phones to preclude advance notice, and

spread out to find as many violations as possible. MSHA targets mines with a particular history

of compliance problems. Such problems include use of tactics to hide violations from MSHA;

employee hazard complaints or anonymous hotline calls; non-compliance with MSHA-approved

plans; inadequate workplace exams; a high injury rate; a fatality; a pattern of violations; or

hazardous conditions at the mine. See, e.g., Michael T. Heenan, Dreaded Impact, Pit & Quarry,

Nov. 2012, at 50. As in this case, these surprise impact inspections often occur mid-shift or

during night shifts, when fewer representatives are available to accompany the inspectors on

behalf of the operator. Id.

As practitioner Heenan points out, however, such inspections are not really new because

MSHA has been doing “blitz” inspections since the earliest days of the Federal Coal Mine

Health and Safety Act of 1969 (Coal Act), and they have continued under the Federal Mine

Safety and Health Act of 1977 (Mine Act) as consistent with provisions that encourage “frequent

inspections.” Id. After the UBB disaster, however, MSHA’s impact inspections are conducted

nearly every month under a formalized program in which mines are selected according to the

above-referenced criteria and the results are publicly announced. Id. Accordingly, I find that the

certainly and regularity of impact inspections targeting particular mines that meet specific

criteria satisfies constitutional search and seizures concerns irrespective of whether distinct and

separate statutory walkaround rights are violated.27 

Furthermore, in the circumstances of this case, I find that the public interest in promoting

safety at the WLPM outweighs the inconvenience of unannounced, warrantless impact

inspections that make the exercise of statutory walkaround rights more difficult. Section 103(a)

of the Act explicitly gives MSHA inspectors the right to enter any mine without any advance

notice of an inspection. 30 U.S.C. § 813(a). In fact, section 103(a) of the Act grants MSHA

inspectors the right to conduct warrantless inspections in the inherently dangerous and

pervasively regulated mining industry to ensure compliance with mandatory health and safety

standards without violating the Fourth Amendement. Donovan v. Dewey, 452 U.S. 594, 596,

603, 605 (1986). Accordingly, mine operators must be aware and expect continuous and

frequent impact inspections without a warrant or probable cause. 

36 FMSHRC Page 1726
b. The Statutory Provisions in Tension: Section 103(a) Must be Balanced

with Section 103(f)

Section 103(a) of the Mine Act states in part, “[i]n carrying out the requirements of this

subsection, no advance notice of an inspection shall be provided to any person . . . .” 

Section 103(f) of the Mine Act states in pertinent part:

Subject to regulations issued by the Secretary, a representative of the

operator and a representative authorized by his miners shall be given

an opportunity to accompany the Secretary or his authorized

representative during the physical inspection of any coal or other

mine made pursuant to the provisions of subsection (a), for the

purpose of aiding such inspection and to participate in pre- or

post-inspection conferences held at the mine . . . . Compliance with

this subsection shall not be a jurisdictional prerequisite to the

enforcement of any provision of this Act.

The Secretary has not issued any regulations under section 103(f). Nor has the Secretary

issued any regulations to govern impact inspections, which have become prevalent since the

April 2010 UBB coal mine disaster. 

I agree with the Secretary that the ability of MSHA inspectors to protect miners from

deadly hazards without advance notice of an inspection under section 103(a) of the Mine Act

must be balanced with the operator’s right to accompany the inspector under section 103(f) of

the Mine Act during an inspection. P. Br. 61. This case presents the novel issue of how the

Commission should determine such balance during an impact inspection involving multiple

inspectors when MSHA specifically informs the operator’s walkaround representative not to

make any phone calls and to escort multiple inspectors underground. I conclude that MSHA is

obligated to provide an opportunity to an operator representative to accompany each inspector

for the purpose of aiding each inspection. Otherwise, statutory rights under section 103(f)

effectively vanish during impact inspections.

In this case, there was no outright denial of Respondent’s walkaround rights as in SCP

Investments. Respondent’s representative Stephenson was given an opportunity to accompany

the Secretary’s authorized representatives. But Stephenson could not be in three places at once

to aid the inspectors when they fanned out underground, and he was specifically instructed by

Miller, the lead MSHA supervisor for the WPLM, not to make any phone calls. 

The statutory language of section 103(f) uses the word “representative” in the singular,

i.e., “a representative of the operator and a representative authorized by his miners shall be given

an opportunity to accompany the Secretary or his authorized representative during the physical

inspection of any coal or other mine made pursuant to the provisions of subsection (a), for the

purpose of aiding such inspection . . . . “ In the legislative history, however, the Senate

36 FMSHRC Page 1727
Committee explained that section 103(f) requires “that representatives of the operator and

miners be permitted to accompany inspectors in order to assist in conducting a full inspection. It

is not intended, however, that the absence of such participation vitiate any citations and penalties

issued as a result of an inspection.” SCP Invs., 31 FMSHRC at 831 (citing Rep. No. 95-181, at

28 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legislative History of

the Federal Mine Safety and Health Act of 1977, at 616 (1978). Thus, the Commission has held

that Section 103(f) affords both representatives of operators and representatives of miners the

right to accompany an MSHA inspector during a “physical inspection of [the] . . . mine” and to

“participate in pre- or post-inspection conferences held at the mine.” See Sec’y of behalf of

Wayne v. Consolidation Coal Co., 11 FMSHRC 483, 488 (April 1989) (citing 30 U.S.C. §

813(f)). 

This right to accompany an inspector is not an unqualified right because it is “[s]ubject to

regulations issued by the Secretary,” requires that a representative “be given an opportunity to

accompany” the inspector, and grants the inspector discretion to permit additional

representatives where he determines that more than one walkaround representative would aid his

inspection. Id. (citing 30 U.S.C. § 813(f); Emery Mining Corp., 10 FMSHRC 276, 279 (Mar.

1988)). Furthermore, the Secretary has given MSHA inspectors the authority to limit the number

of representatives participating in an inspection, consistent with the primary obligation to carry

out inspections in a thorough, detailed, and orderly manner. Interpretative Bulletin, 43 Fed. Reg.

17546 (1978); Emery Mining Corp, 10 FMSHRC at 289, n. 13. More specifically, the

Secretary’s Interpretative Bulletin, which sets forth guidelines for the inspector’s interpretation

and application of section 103(f) provides that “[w]here necessary in order to assure a proper

inspection, the inspector may limit the number of representatives of the operator and miners

participating in an inspection.” 43 Fed Reg. at 17546. 

In this case, however, the Secretary has failed to show that Miller’s directive to

Stephenson not to make any phone calls was necessary to assure a proper impact inspection and

preclude advance notice. Rather, on this record I conclude that MSHA failed to give Respondent

an opportunity to exercise its full section 103(f) walkaround rights when Miller instructed

Stephenson to transport three inspectors underground and not to contact anyone or make any

phone calls. Tr. 415. Miller explicitly denied Stephenson the “opportunity” to contact other

management officials to act as operator representatives to aid in the inspection. I credit

Stephenson’s testimony that he did not attempt to obtain company escorts for each of the three

inspectors (Hatcher, Morris, and Stanley) because he was told by Miller not to make any phone

calls. Tr. 416. Miller’s directive runs counter to MSHA’s statutory obligation to afford an

operator representative an opportunity to accompany each authorized representative of the

Secretary during the physical inspection of the mine. 

I reject the Secretary’s argument that MSHA did not deny Respondent an opportunity to

escort the inspectors because Stephenson should have called for an escort after dropping off each

inspector at the various locations. As noted, Stephenson was given an explicit directive by

Miller not to call anyone, and another supervisory official (Bishop) was present when Miller’s

directive was given. Tr. 415. Stephenson recognized them as supervisory officials for MSHA. 

36 FMSHRC Page 1728
28 There appears to be some confusion as to whether the Commission formulates any

policy. Certainly, it does not formulate enforcement policy, left to MSHA. But the Mine Act

does gives the Commission jurisdiction over “substantial question[s] of law, policy or

discretion,” 30 U.S.C. § 823(d)(2)(A)(ii)(IV), and the legislative history makes clear that “[t]he

Commission was established as the ‘ultimate administrate review body’ under the Act due to the

recognition that ‘an independent Commission is essential to provide administrative adjudication

which preserves due process and instills much more confidence in the program.’” Old Ben Coal

Co., 1 FMSHRC 1480, 1484 (Oct. 29, 1979) (citing S. Rep. No. 95-181, at 13 (1977), reprinted

in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., Legislative

History of the Federal Mine Safety and Health Act of 1977, at 601, 635 (1978)). The Supreme

Court has also recognized the unique role of the Commission in formulating a uniform and

comprehensive interpretation of the Mine Act. Compare Thunder Basin Coal Co. v. Reich, 510

U.S. 200 (1994) (affirming the Commission’s role as the arbiter of questions of interpretation of

the Mine Act) with Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157-

58 (1991) (emphasizing the narrowness of the holding that the OSH Act did not grant OSHRC

the authority to interpret OSHA regulations); see also Speed Mining, Inc., 28 FMSHRC 773

(Sept. 2006) (Chairman Duffy, concurring) (concurrence provides a detailed examination of the

differences in the OSH Act and the Mine Act). 

29 See DJB Welding, 32 FMSHRC 728, 736 (June 2010) (ALJ) (inspector not obligated

to delay inspection or wait longer than reasonable for a representative to arrive, citing F.R.

Carroll, Inc., 26 FMSHRC 97, 98 (Feb. 2004 (ALJ) (operator who was “too busy” to accompany

inspector had responsibility to designate another representative).

Id. I decline to require Stephenson to buck Miller’s direct order and invoke or insist on the

opportunity for one-to-one walkaround rights either on the surface or underground as a means of

securing the opportunity that the statute requires MSHA to give. But see NLRB v. J. Weingarten,

Inc., 420 U.S. 251, 257 (1975) (employee’s statutory right to union representation during an

investigatory interview arises only where the employee requests representation; hence, employee

may forego his statutory right and participate in an interview unaccompanied by his union

representative). Of course, the Commission is free to fashion a policy decision to the contrary.28 

Miller’s pre-emptive directive to Stephenson suggests that MSHA had little interest in

affording Respondent its statutory opportunity to have a representative escort each inspector for

the purpose of aiding their impact inspection. Both on the surface and underground, Stephenson

complied with the government’s directive and did not call any other management officials to act

as company escorts. Tr. 416. As a result, Hatcher’s inspection of the 1st West belt was

unescorted. Although inspectors are not required to wait for management escorts and can

“walk” into a mine (Tr. 456-57),29 section 103(f) places the onus on MSHA to give an

opportunity to company representatives to accompany the inspectors for purposes of aiding their

inspection. In short, Miller’s directive, which Stephenson followed, denied Respondent an

opportunity to escort Hatcher’s inspection. 

The Secretary justifies Miller’s directive to Stephenson not to call company escorts on

the grounds that Respondent cannot provide advance notice of an inspection. P. Br. 61. On this

36 FMSHRC Page 1729
record, that justification is a red herring. All inspections preclude advance notice and operators

are charged with this knowledge. The Secretary failed to establish that affording Respondent an

opportunity to provide an escort for inspector Hatcher would compromise any protection against

advanced notice of the inspection. On the contrary, Stephenson testified that regular inspections

with multiple inspectors are common at the WLPM. Tr. 405, 438. Normally, during such

inspections, MSHA provides Respondent with an opportunity to obtain a company representative

for each inspector before the beginning of the inspection. Tr. 406, 416. Before such inspections,

the inspectors would not tell the representatives where they were going to inspect so as to reduce

any likelihood of advanced notice. Tr. 406-07, 494. These inspection procedures worked and

the Secretary has not alleged any problems of advanced notice at the WPLM. Tr. 504. 

Therefore, on this record, the Secretary’s generalized concern over the possibility of advanced

notice do not override the Respondent’s section 103(f) right to be given an opportunity to aid in

each portion of the impact inspection, including Hatcher’s inspection.

In addition, I find it telling that Hatcher’s notes state “Impact Inspection” in the space

used to identify a company representative, suggesting that MSHA may think that such

inspections are exempt from 103(f) requirements. At the very least, it would appear that Hatcher

never intended for there to be a company representative with him during the impact inspection. 

I reject any argument that Stephenson was an operator representative, who was given an

opportunity to accompany Hatcher during his inspection. After transporting Hatcher to the 1st

West belt, Stephenson was required to drive further inby and drop inspector Stanley off. 

I also reject the argument or any suggestion that section 103(f) rights do not apply in

impact inspections. Rather, I agree with Respondent that the Secretary cannot justify MSHA’s

failure to offer an opportunity to an operator representative to accompany inspector Hatcher

simply by characterizing the September 12, 2011 inspection as an “impact inspection” designed

to preclude advance notice. I note that inspector Morris, on cross examination, conceded that the

impact inspection was part of a regular EO1 inspection. Tr. 436. More importantly, the

Commission has held that walkaround rights under Section 103(f ) apply to all inspections. 

Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994) (issue of miners’ representative). In

fact, one Commission judge has characterized the right of a mine operator to be afforded an

opportunity to be present and to accompany an inspector as a fundamental right and found that

MSHA inspectors must make every reasonable effort to give a mine operator an opportunity to

exercise its walkaround rights. DJB Welding Corp., 32 FMSHRC 728, 733, 735 (June 2010)

(ALJ) (emphasis added). 

Although impact inspections make it more difficult for operators to invoke walkaround

rights, the enhanced miner safety and health that results from impact inspections outweighs this

difficulty. Furthermore, operator preparation and training for impact inspection contingencies

can alleviate this concern. 

On the other hand, MSHA cannot employ this successful and important initiative to deny

an operator its statutory right to accompany an inspector for the purpose of aiding such

36 FMSHRC Page 1730
inspection under section 103(f). As the Commission has stated, “[w]e are not prepared to restrict

the rights afforded by [section 103(f)] absent a clear indication in the statutory language or

legislative history of an intent to do so, or absent an appropriate limitation imposed by

Secretarial regulation.”) Consolidation Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). I find no

clear indication in statutory language, legislative history, or regulation to limit section 103(f)

rights during impact inspections. 

In sum, I conclude that MSHA failed to give Respondent an opportunity to accompany

inspector Hatcher for the purpose of aiding his inspection of the WLPM during the impact

inspection on September 12, 2011. This failure violated Respondent’s statutory walkaround

rights under section 103(f) of the Mine Act. 

As a remedy for the statutory infringement of Respondent’s walkaround rights, I apply an

exclusionary rule and determine what, if any, evidence from Hatcher’s inspection of the 1st West

belt should be excluded if Respondent can demonstrate prejudice in the preparation or

presentation of its defense. SCP Invs. LCC, 31 FMSHRC at 835-37 (citing Frank Lill & Son,

Inc. v. Sec’y of Labor, 362 F.3d 840, 846 (D.C. Cir. 2004); Pullman Power Prods., Inc. v.

Marshall, 655 F.2d 41, 44 (4th Cir. 1981); Marshall v. Western Waterproofing Co., 560 F.2d

947, 951-52 (8th Cir. 1977); Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir.

1976); Chicago Bridge, 535 F.2d at 376; Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34

(5th Cir. 1975); Titanium Metals Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7

OSHC 1874 (Oct. 1979); Able Contractors, Inc., 5 OSHC 1975 (Oct. 1977)).

c. The Constitutional Due Process Issue 

Before addressing an exclusionary rule remedy for the statutory infringement of

Respondent’s walkaround rights, I first address Respondent’s argument that the erroneous denial

of its right to be given an opportunity to participate in Hatcher’s inspection was a violation of

constitutional due process. I do so because an argument can be made based on non-precedential

decisions of Commission judges that a denial of due process may be grounds for vacating

citations otherwise jurisdictionally and substantively valid, i.e., a potentially stronger remedy

than application of an exclusionary rule. See SCP Invs., LLC., 32 FMSHRC 119, at 124-25 (Jan.

2010) (ALJ after remand) (citing American Coal Co., 29 FMSHRC 941, 952-53 (Dec. 2007));

Gates & Fox Co. v. OSHRC, 790 F.2d 1189, 1193 (9th Cir. 1982) (considerations of due process

prevent imposition of a civil penalty and validation of a citation otherwise properly issued); DJB

Welding, 32 FMSHRC at 734-35 (suggesting, even after the Commision’s decision in SCP

Investments, that a violation of walkaround rights that results from an abuse of discretion

provides a sufficient basis for vacating citations). It is troubling that the Secretary does not even

address the Respondent’s due process arguments on brief, even though the Secretary was clearly

on notice at the hearing that Respondent was raising this constitutional issue when Respondent

unsuccessfully moved to vacate the citations written by inspector Hatcher. Tr. 398-400. 

In its remand in SCP Investments, Commissioners Young and Cohen noted that “[t]he

only possible basis to overcome the [jurisdictional] statutory language would have to be

36 FMSHRC Page 1731
constitutional in nature, such as a violation of the Due Process Clause,” a “complex issue” not

presented in that case. 31 FMSHRC at 834, fn. 14. Extant Commission case law establishes that

violations of due process are grounds for vacating citations otherwise jurisdictionally and

substantively valid. American Coal Co., 29 FMSHRC at 952-53 (citing Gates & Fox Co. v.

OSHRC, 790 F.2d at 1193). Consequently, the constitutional issue presented in this case is

whether MSHA’s denial of the Respondent’s statutory section 103(f) walkaround right to

accompany inspector Hatcher when he wrote citations on the 1st West belt line was a due

process violation. Especially cognizant of the judge’s analysis of this issue on remand from the

Commission in SCP Investments, I conclude that MSHA’s conduct during the subject impact

inspection constituted a constitutional violation of procedural due process. 

The Fifth Amendment provides that “no person shall be . . . deprived of life, liberty, or

property, without due process of law . . . .” Clearly, no deprivation of life occurred here. Nor do

I find any deprivation of a liberty interest. Concededly, the Supreme Court recognized in Board

of Regents v. Roth, that the definition of liberty must be “broad” and include “not merely the

freedom from bodily restraint but also the right of an individual to contract, to engage in any of

the common occupations of life, to acquire useful knowledge, to marry, establish a home and

bring up children, to worship God according to the dictates of . . . conscience, and generally to

enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free

men.” 408 U.S. 564, 576-78 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 392 (1923)). 

Despite this broad definition, the Roth court did not look to the “weight but to the nature of the

interest at stake” and held that the opportunity to keep a teaching positions at a state university,

or other government job was not comparable to those freedoms enunciated in Meyer. 408 U.S. at

575. Similarly, I find that the mandatory language in section 103(f) creating a statutory right in

an operator representative to be given an opportunity to accompany an MSHA inspector for the

purpose of aiding in an inspection does not implicate a major loss of personal freedom or liberty 

such that due process protections must be accorded. Compare Goss v. Lopez, 419 U.S. 565

(1975) (ten-day suspension from high school implicates liberty interest), and Gagnon v.

Scarpelli, 411 U.S. 778 (1973) (probation revocation), and Morrisey v. Brewer, 408 U.S. 471

(1972) (parole revocation), with Sandin v. Conner, 515 U.S. 472 (1995) (mandatory language in

state prison regulations will not create a liberty interest for placement in solitary confinement

because of prison misconduct unless the deprivation imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life).

The property interest analysis is more difficult. The Roth Court recognized that a

property interest is “a legitimate claim of entitlement” that arises, not from the Constitution

itself, but is created and defined “by existing rules or understandings that stem from an

independent source such as state law-rules or understandings that secure certain benefits and that

support claims of entitlement to those benefits.” Roth, 408 U.S. at 576-78. Thus, Respondent

must demonstrate that some authoritative source of law “establishes a definite standard to guide

the decision . . . rather than confiding the decision to the discretion of the administering

authorities.” See Gilbert v. Frazier, 931 F.2d 1581 (7th Cir. 1991). For example, in Goldberg v.

Kelly, where the Court finally abandoned the right-privilege distinction, the welfare claimants

had a property interest at stake because the underlying federal legislation provided that

36 FMSHRC Page 1732
individuals who met certain criteria had a legal right to receive welfare payments. 397 U.S. 254,

261-63 (1970); see also Mathews v. Eldridge, 424 U.S. 319 (social security benefits). 

Here, Respondent has demonstrated a legitimate claim of entitlement to be given an

opportunity to accompany inspector Hatcher during his inspection of the 1st West belt. Like in

Goldberg v. Kelly and Mathews v. Eldridge, this right is grounded in federal statute, specifically

section 103(f) of the Mine Act. The denial of Respondent’s statutory right to be given an

opportunity to accompany inspector Hatcher during the impact inspection for the purpose of

aiding such inspection also operated to deprive Respondent of an opportunity to provide

exculpatory information or a different version of the facts during the course of the inspection,

which could have been relied on during participation in the post-inspection conferences at the

mine, and in its defense of the civil penalty petition at trial. Obviously, any civil penalty

assessed compels Respondent to relinquish money, which is a tangible property interest. 

Despite the Secretary’s silence, I recognize that an injury to a protected property interest

does not qualify as a deprivation if the injury is inflicted through mere negligence rather than

deliberation. See, e.g., Daniels v. Williams, 474 U.S. 327 (1986). On this record, however, I

find that MSHA made a deliberate decision to limit walkaround rights during the impact

inspection. Two facts lead inexorably to this conclusion. Lead field office supervisor Miller

instructed Stephenson not to make any phone calls with the foreseeable result that Stephenson,

without disobeying the government edict, could not obtain sufficient company representatives. 

Second, Hatcher’s notes indicate that no company representative was needed because this was an

impact inspection. 

Since I have determined that a constitutionally protected property interest was infringed,

I next address what procedures the Constitution requires for the violation. In Matthews v.

Eldridge, the Court endeavored to maintain flexibility in due process analyses based on the

particular situation presented. The Court looked to three factors in order to determine what

process is due. 

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value if, any, of additional or

substitute procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirements would entail. 

Mathews v. Eldridge, 424 U.S. at 334-35 (1976) (citing Goldberg v. Kelly, 397 U.S. at 263-271).

Addressing the first factor, the deprivation of Respondent’s private interest to accompany

inspector Hatcher for the purpose of aiding in his inspection is readily apparent. A major

objective of the Mine Act is to encourage the efforts of mine operators and miners “to prevent

the existence of . . . [hazardous] conditions and practices in . . . mines.” 30 U.S.C. § 801(e). 

36 FMSHRC Page 1733
30 On remand in SCP Investments, the judge rejected the Secretary’s assertion that a

close-out conference is an acceptable substitute for walkaround rights. He found clear legislative

history that Congress did not intend to empower the Secretary to arbitrarily deny section 103(f)

walkaround rights in favor of a substitute procedure. 32 FMSHRC at 127-28. 

31 On remand in SCP Investments, the judge found “[i]t is clear that the denial of Stone’s

right to accompany the inspector deprived the mine operator of its statutory right to provide

exculpatory information during the course of the inspection.” 32 FMSHRC at 125. It is not

clear to me that there is any such statutory right. Rather, section 103(f) provides a right to be

given “an opportunity to accompany the Secretary or his authorized representative during the

physical inspection of any coal or other mine made pursuant to the provisions of subsection

[103](a), for the purpose of aiding such inspection . . . .” Providing exculpatory information and

aiding the inspection are not necessarily the same. The judge then found “a denial of due

process because of the erroneous denial of Stone’s right to participate in the inspection,” and

applied the Matthews v. Eldridge factors “for determining whether a violation of due process has

occurred,” instead of for determining what process is due for the termination of a clear and

tangible property interest, such as the social security benefits at issue there. SCP Invs. LLC, 32

FMSHRC at 126 (citing Matthews v. Eldridge, 424 U.S. at 334-35). 

Accordingly, section 103(f) of the Act confers the right of representatives of mine operators and

miners to accompany inspectors during inspections “for the purpose of aiding such inspection.”

30 U.S.C. § 813(f). See SCP Invs. LLC, 32 FMSHRC 119, 126-27 (Jan. 2010) (ALJ). Skirting

the statutory walkaround requirement during an impact inspection or otherwise could deprive the

inspector of important information that would have been supplied to him by the operator

representative had one been given an opportunity to accompany the inspector. Cf., SCP Invs.

LLC, 31 FMSHRC at 843 (Jordan, Commr., dissenting). 

With regard to the second factor, I have determined that MSHA’s instant impact

inspection, as carried out consistent with Miller’s directive that Respondent not make any phone

calls, erroneously deprived Respondent of its statutory right to be given an opportunity to

accompany inspector Hatcher during his inspection of the 1st West belt. The Secretary, having

failed to even address the complex due process argument raised by Respondent, obviously has

failed to proffer any additional or substitute procedural safeguards for protecting Respondent’s

walkaround rights.30 But this does not mean that there are none. Even though the statutory

walkaround violation that I have found constitutes a denial of due process because of the

erroneous denial of Respondent’s right to be given an opportunity to participate in Hatcher’s

inspection,31 I find that any process due for violation of this statutory right is constitutionally

satisfied by application of an exclusionary remedy as explained by the Commission plurality in

SCP Investments. This finding accounts for the Commission’s unanimous conclusion that even

MSHA’s intentional failure to honor statutory walkaround rights under section 103(f) does not

prevent MSHA from taking enforcement action under the last sentence of that provision, which

precludes vacature. SCP Invs. LLC, 31 FMSHRC at 831. 

Finally, turning to the Government’s interest, including the function involved and the

fiscal and administrative burdens that [any] additional or substitute procedural safeguards would

36 FMSHRC Page 1734
entail, I have no doubt that impact inspections, which are designed for surprise and to preclude

advance notice, enhance miner safety and health. But MSHA can still employ this successful

and important initiative without denying an operator its statutory right to be afforded an

opportunity to accompany each inspector on an impact inspection for the purpose of aiding the

inspection under Section 103(f). MSHA’s provision of this mandatory but qualified right

imposes no significant fiscal or administrative burden on MSHA’s inspection regime. 

In fact, affording Respondent an opportunity to participate in Hatcher’s inspection,

furthers, rather than burdens, the Government’s interest in encouraging a safer mining

environment. There can be little doubt that Respondent’s representatives are familiar with the

particular conditions that are unique to the WLPM. A representative of a mine operator can alert

an inspector to potential dangers based on familiarity with the mine. Mine operator

representatives, like miner representatives, are assets to a successful mine inspection, which

seeks to identify hazardous conditions and require remedial actions to alleviate the dangers. See

SCP Invs. LLC, 32 FMSHRC at 126. Accommodating walkaround rights does not result in any

significant administrative burden other than having to deal with a representative who may point

out hazards, offer justifications, proffer mitigating circumstances, and collect evidence that may

support a perspective contrary to the inspector’s view at hearing. 

Accordingly, MSHA must accommodate an operator’s statutory walkaround rights

during an impact inspection with as little vitiation as is necessary to perform its inspection

function effectively without advance notice. Here, MSHA has not done that. Miller’s directive

precluding any phone calls to invoke a statutory right, was less designed to preclude advance

notice, already outlawed under section 103(a), than a purposeful effort to preclude Respondent’s

representatives from accompanying the three inspectors. Hatcher’s notes bolster this inference. 

MSHA had many options available to afford Respondent an opportunity to aid in the impact

inspection. And since MSHA failed to do so, an exclusionary rule can be applied to remedy the

violation and provide a sufficient procedural safeguard should the operator demonstrate that it

was prejudiced by the violation. 

d. The Exclusionary Rule and Evidence of Prejudice

Applying an exclusionary rule pursuant to the plurality opinion of the Commission in

SCP Investments, I determine whether MSHA’s actions during the impact inspection prejudiced

Respondent. Under this approach, once a determination is made, as here, that an operator’s

walkaround rights were violated, the Commission determines what prejudice, if any, resulted

from the violation and what, if any, evidence proposed for admission by the Secretary should be

excluded because of prejudice to the operator, i.e., some, none, or all of the evidence resulting

from the inspection. 31 FMSHRC at 836-37. 

 

Relying on the judge’s post-remand decision in SCP Investments, Respondent argues that

an arbitrary denial of section 103(f) rights is prejudicial per se, regardless of whether it interferes

with an operator’s ability to defend itself. R. Br. 78-79 (citing SCP Invs., 32 FMSHRC at 128-

29). While I am sympathetic to this argument, the Commission requires a showing of actual

36 FMSHRC Page 1735
prejudice to the preparation or presentation of the defense. See, e.g., Long Branch Energy, 33

FMSHRC 1960 (Aug. 2011) (ALJ), rev’d, 34 FMSHRC 1984, 1992 (Aug. 2012) (Duffy,

Comm’r, dissenting) (rejecting Supreme Court’s “danger of prejudice” factor enunciated in

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993), and requiring that

the prejudice be “real” or “substantial” and demonstrated by a specific showing tied to “the

preparation and presentation of the operator’s case.”); Chicago Bridge, 535 F.2d at 374, 377

(essentially rejecting company argument that to allow the Secretary to bypass the statutory

walkaround right will permit the inspection process to operate on the employer in an “inherently

prejudicial manner,” and emphasizing both substantial compliance with the walkaround right and

the failure of the company to demonstrate “any concrete prejudice to its defense by the exclusion

from the inspection party”). On this record, however, Respondent has made a sufficient case that

it was actually prejudiced in the preparation or presentation of its typical defense to the citations. 

Actual prejudice occurs when an operator can show that the denial of section 103(f)

rights resulted in an inability to prepare or present its defense on the merits before the

Commission. See SCP Invs. LLC, 31 FMSHRC at 835 (Aug. 2009) (citing Titanium Metals

Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7 OSHC 1874 (Oct. 1979); Able

Contractors, Inc., 5 OSHC 1975 (Oct. 1977)). For example, an operator’s ability to defend itself

is adversely affected by the absence of an opportunity to provide material contemporaneous

information at the time of the inspection. SCP Invs. LLC, 32 FMSHRC at 128-29; but see

Marshall v. W. Waterproofing Co., 560 F.2d 947, 951-52 (8th Cir. 1977) (a showing that a large

number of citations were withdrawn and a small number of citations were sustained after a

complaint was filed, coupled with the fact that an employer had to post all citations at the

workplace, do not establish prejudice to an operator’s ability to defend on the merits); Titanium

Metals Corp. of Am., 7 OSHC 2172 (a claim that failure to comply with the walkaround

provision could create labor-management problems is not the type of prejudice contemplated by

the OSHA). Rather, actual prejudice occurs when the operator makes a specific showing that the

misbehavior prejudiced it in preparing or presenting its defense. A. J. McNulty & Co., 19 OSHC

1121, 1125 (Oct. 2000) (finding no prejudice since the operator’s representatives learned of the

violations almost immediately after the inspector observed them); see also Laclede Gas Co., 7

OSHC 1874 (Oct. 1979). Essentially, this actual prejudice requirement puts the burden on the

operator to establish the speculative possibility that the inspection would have revealed different

facts or the operator would have been aided in preparation of its typical defense to the citations. 

On remand in SCP Investments, the judge recognized the difficulty in applying an

exclusionary hearing to determine what information, if any, would have been provided during

the inspection in defense of each citation. 

Having been deprived of the opportunity, we will never know what

information Stone would have provided during the December 2005

inspection. Any testimony he now may give concerning what he

might have said is entitled to little weight because it is remote in time

and self-serving. In other words, the Secretary’s denial of Stone’s

due process has undermined the value of Stone’s testimony.

36 FMSHRC Page 1736
Certainly, the Government should not benefit from its own

misconduct. Rather, two Commissioners suggested that I determine,

in view of the denial of Stone’s 103(f) walkaround right, whether

“none, some, or all of the evidence resulting from the inspection”

should be excluded. 31 FMSHRC at 836-37.

Once due process issues arise, all direct and indirect evidence

obtained as a result of a government official’s abuse is excluded.

See, e.g., Weeks v. United States, 232 U.S. 383 (1914); Nardone v.

United States, 308 U.S. 338, 341 (1939) (suppression of “fruit of

poison tree”); Wong Sun v. United States, 371 U.S. 471, 484 (1963)

. . . . Having given the Secretary the opportunity to address the due

process issue, and, having determined that Stone’s right to due

process was violated, all evidence obtained as a result of the

inspector’s observations of the mine conditions during the inspection

must be excluded. Weeks, supra.

I decline to exclude all direct and indirect evidence obtained as a 

result of MSHA’s violation of an operator’s walkaround rights. 

In my view, such a result essentially compels exclusion without 

initial assessment of the prejudice issue in application of an 

exclusionary rule. 

Given the difficulty of determining what evidence would have been presented had an

operator’s statutory rights not been violated by MSHA, I am of the view that a practical, flexible

and fact-based test of prejudice should take into account the dynamic nature of the mining

industry. Accordingly, when an operator is put on notice of the safety or health violation at

issue, it is prejudiced if it is unable to go and observe the condition or practice cited as the

inspector saw it in order to defend itself against the alleged condition. After all, the operator has

only been deprived of the opportunity to accompany the inspector and observe or test as the

inspector did. If this opportunity is still available, the operator is not actually prejudiced by the

denial of the opportunity to observe and test. Although there may be a denial of the opportunity

to timely proffer mitigating circumstances to the inspector, the operator can still raise mitigating

circumstances in an attempt to reduce a negligence determination after the fact and at trial. 

In this case, Respondent has offered some evidence to demonstrate that it was prejudiced

in its ability to prepare its defense to the unescorted Hatcher citations. Respondent focuses on

specific prejudice that is best illustrated by Citation No. 8431251. 

1. Citation No. 8431251

Citation No. 8431251 alleges an S&S violation of section 75.400 for accumulations

present along the 1st West belt line. P. Ex. 10. Stephenson credibly testified, and Respondent

essentially demonstrated throughout the hearing, that for citations involving an alleged

36 FMSHRC Page 1737
32 Hatcher took no measurements of the depth of the cited coal pressings because the belt

was running. Tr. 525. 

accumulation of combustible material, Respondent’s walkaround representative would typically

take a sample of material to determine the combustibility content (Tr. 411-12), take a heat

reading to determine the amount of heat the alleged frictional ignition source would generate (Tr.

411), and take measurements and/or photographs to provide additional information about the

condition. Here, because MSHA failed to afford Respondent an opportunity to accompany

inspector Hatcher to aid his inspection, Respondent had no opportunity to gather such specific

evidence in defense of Citation 8431251. In short, because Respondent was not afforded the

opportunity to provide a representative to accompany inspector Hatcher along the 1st West belt

line, Respondent was precluded from gathering the very types of evidence in defense of Citation

No. 8431251 that it relied upon for its defenses of Order No. 8030700, Order No. 8428378,

Citation No. 8428798 and Citation No. 8436403, discussed herein. 

It is undisputed that Respondent was denied any opportunity to sample the material cited

to determine its combustibility content. The standard, 30 C.F.R. § 75.400, requires an

accumulation of combustible material. Respondent argues that such evidence would have been

particularly critical because the Secretary’s three photographs of the condition (P. Ex. 11)

arguably shows material consisting of incombustible white rock dust. R. Br. 82. If Respondent

could show that the material cited was not combustible coal pressings, but incombustible, rockdusted material, there would be no violation of the standard and the citation could be vacated. 

Respondent has made a colorable showing that it was denied this opportunity. 

In addition, Respondent argues that it was denied any opportunity to take a heat reading

of the alleged frictional ignition source to determine if the roller that was in contact with the coal

pressings was capable of generating heat sufficient to produce an ignition or smoldering fire, i.e.,

the basis for Hatcher’s S&S finding. See Tr. 528-30.32 Although extant Commission case law is

not sympathetic to this argument for overturning an S&S finding, Respondent was denied the

opportunity to support the arguments it has raised in an effort to convince the Commission

otherwise. Further, although Hatcher determined negligence to be high because the operator had

been put on notice about citations of this nature, Respondent was denied any opportunity to take

measurements or photographs of the alleged condition to counter Hatcher’s testimony that the

condition was open and obvious, such that a belt examiner knew or should have known about it. 

Tr. 532. Moreover, Respondent was denied the opportunity to present any mitigating

circumstances to inspector Hatcher at the time of the inspection or shortly thereafter based on

observations made by its representative. 

Applying the exclusionary rule in light of Respondent’s prejudice arguments, I exclude

all evidence that resulted from the unescorted inspection, including the Secretary’s photographs

and Hatcher’s testimony proffered in support of Citation 8431251. Such exclusion is appropriate

because Respondent’s section 103(f) walkaround rights were violated and Respondent has

demonstrated sufficient prejudice because it was denied the opportunity to observe, test, and/or

photograph the alleged combustible material and frictional heat source in the same condition that

the inspector observed them. See SCP Inves., 31 FMSHRC at 835; Chicago Bridge, 535 F.2d at

36 FMSHRC Page 1738
378; Marshall, 560 F.2d at 952. Upon such exclusion, there is insufficient independent evidence

to support Citation 8431251 and the proposed penalty.

2. Citation No. 8431250 

I next turn to Citation No. 8431250 alleging that Respondent violated section 75.333(h)

because the Kennedy equipment doors separating the intake air from belt air at cross cut #13

were not being maintained to serve the purpose for which they were intended. In its SCP

Investment decision, the plurality found that evidence may be excluded “when the employer can

demonstrate prejudice.” SCP Invs. LLC, 31 FMSHRC at 835 (citations omitted). When

addressing the question of prejudice in Chicago Bridge, the Seventh Circuit noted that the

Secretary bears the burden of proof on the citation and the “company has not attempted to

demonstrate that this burden has not been met, nor has it offered evidence to demonstrate

prejudice.” 535 F.2d at 377, n. 15. Although Respondent has not made any specific prejudice

argument on brief with respect to Citation No. 8431250, Respondent has at least attempted to

demonstrate that the Secretary has not met his burden of proof when an exclusionary rule is

applied because it argues that all evidence should be excluded. 

The Secretary attempts to prove the violation alleged in Citation 8431250 through

Hatcher’s observation and testimony that air was leaking through the top and bottom of the doors

to the belt line based on the chemical smoke test that Hatcher performed, and from which

Respondent was excluded. According to Hatcher, the top of the west door had a hole that was

one to three inches in width and five inches in length, while the bottom of the east door had a

hole that was three to twelve inches in width and six feet in length. I conclude that Respondent

was not prejudiced by these measurements because it could go back and check them shortly after

notice of the violation. But the violation turns on whether the doors were serving their intended

purpose to separate the intake air from the belt air, not on whether the doors were damaged. 

Although Respondent could go back after the fact and observe the dimensions of the holes in the

door, the Secretary provided no evidence, separate from Hatcher’s testimony based on the

chemical test that he performed, which would establish that the doors were not serving their

intended purpose. The violation was only established by the chemical test, which the operator

was unable to observe or challenge. A representative of Respondent was not given an

opportunity to be present to recreate the chemical test or challenge its methodology or reliability. 

The Secretary failed to establish by any independent evidence that the extent of the holes in the

damaged doors necessarily established that the doors were not being maintained to serve their

intended purpose. While it may be possible to make such an inference had the case been tried

differently, in the absence of such evidence on this record, I decline to draw the inference. 

Applying the exclusionary rule in light of the foregoing, I find that Respondent has been

prejudiced by its inability to observe and challenge Hatcher’s chemical test and his testimony

based on that test. Accordingly, I exclude such evidence. Upon such exclusion, there is

insufficient evidence to support a violation of the standard, as written, or the proposed penalty. 

36 FMSHRC Page 1739
3. Citation No. 8431252

Finally, I address Citation No. 8431252, which alleges a violation of section 75.1731(b)

because the bottom return belt on the 1st west belt line was not properly aligned and was rubbing

steel hanger brackets at three specified locations, and because the bottom return belt was in

contact with a stand on the south side of belt at cross cut #10, and had cut through the two-inch

steel stand at cross cut #37 for a depth of 13⁄4 inches. Again Respondent has not advanced any

specific prejudice argument on brief with respect to this Citation, but has at least attempted to

demonstrate that the Secretary has not met his burden of proof when I apply an exclusionary rule

because all evidence from the inspection should be excluded. I decline to exclude such

evidence. 

The violation turns on whether the belt was misaligned and rubbing the brackets and

cutting into the stands. Respondent was not prejudiced by Hatcher’s testimony or the

photographs he took concerning this violation because Respondent could go back and check the

belt alignment and its contact points with the brackets and stands shortly after notice of the

violation, and Respondent could observe the violation in essentially the same condition as

inspector Hatcher observed it. 

Accordingly, I affirm Citation No. 8431252 as non-S&S, unlikely to result in a lost

workdays or restricted duty injury, with one person affected. Although Respondent was denied

the opportunity to timely proffer mitigating circumstances to the inspector in an effort to reduce

the high negligence determination, the operator had an opportunity but failed to raise any

mitigating circumstances after the fact in the closeout conference or at trial. Guided by the

regular assessment criteria set forth in § 100.3 as applied to my findings above, I assess a penalty

of $1,203. 

E. Bench Decision Granting Respondent’s Motion to Vacate Order No. 8428701

1. The Alleged Violation 

At the end of the hearing, the undersigned granted Respondent’s request for a bench

decision to vacate Order No. 8428701. Tr. 1056-57. MSHA inspector Fazzolare wrote that

Order alleging that Respondent had not conducted a pre-shift examination of the right-side set of

rooms in Unit 5 during the midnight shift on May 9, 2011. P. Exs. 38, 39, at 12; Tr. 723-24. 

Order No. 8428701 was issued pursuant to section 104(d)(2) and initially alleged a

violation of 30 C.F.R. § 75.360(a)(1), as follows: 

There was no evidence of a pre-shift examination being conducted on

MMU 015-0, rooms to the right on the number 5 unit, for day shift

production crew.

36 FMSHRC Page 1740
There were no D, T & I’s in any of the three entries of the rooms.

The last time there was evidence of a pre-shift examination was

05/08/2011 for the oncoming midnight shift.

Standard 75.360(a)(1) was cited 2 times in two years at mine

1103054 (2 to the operator, 0 to a contractor).

The Order was designated S&S because highly likely to result in a permanently disabling

injury, with nine persons affected. The Order was also alleged to be the result of high

negligence and an unwarrantable failure. P. Ex. 38. 

Near the end of the hearing, the undersigned granted the Secretary’s Motion to Plead in

the Alternative and allege a violation of 30 C.F.R. § 75.360(f), which states that the pre-shift

examination shall be certified at each working place by DTIs (date, time, and initials). Tr. 1056. 

The issues presented are whether a violation of either alternatively pled standard in Order

No. 8428701 was established; whether any such violation was properly designated S&S and/or

an unwarrantable failure; whether the gravity and negligence determinations were proper; and

the appropriate amount of any penalty. 

The Secretary argues that Respondent violated 30 C.F.R. § 75.360(a)(1) as alleged in

Order No. 8428701 because it failed to conduct a pre-shift examination of three entries on the

right side of the MMU 015 Unit. Alternatively, the Secretary argues that Respondent violated 30

C.F.R. § 75.360(f) when it failed to certify the pre-shift examination by date, time, and initials in

the three entries on the right side of the MMU 015 Unit.

Respondent argues that the undersigned appropriately granted Respondent’s motion to

vacate at the close of the hearing because no violation occurred. Even assuming arguendo that

any violation occurred, Respondent argues that the gravity, S&S, high negligence, and

unwarrantable failure findings are excessive and not supported by the record evidence, and the

specially assessed penalty of $52,500 is inappropriate. 

2. Factual Background

a. The Secretary’s Evidence

Inspector Fazzolare issued Order No. 8428701 at 9:30 a.m. on May 9, 2011 because he

found a hazard in the No. 1 entry, which was cut too wide, and he could not find any DTI tags in

the three right-side entries of the MMU 015 Unit. Tr. 723-724, 728. Fazzolare testified that it

was obvious to the casual observer that the width of the entry was “wider than the law permits.” 

Tr. 730. Fazzolare designated Order 8428701 as significant and substantial because the

excessively wide width of the #1 entry contributed to the hazard of a roof fall, which should have

been identified by the pre-shift examiner during his examination, and this condition was highly

likely to result in permanently disabling injuries, such as multiple broken bones. Tr. 728-33; P.

36 FMSHRC Page 1741
33 Respondent argues that Order 8428701 should be designated as non-S&S and unlikely

because the citation issued for the wide #1 entry was designated non-S&S and unlikely. The

Secretary counters that the failure to discover hazardous conditions must be viewed in the

context of continued mining operations, and the wide-entry citation was issued before Fazzolare

discovered the failure to perform the pre-shift examination, and it was a contributing factor in

Fazzolare’s S&S designation for Order 8428701. Tr. 750-51.

34 Section 75.360(a)(1) requires as follows:

Except as provided in paragraph (a)(2), of this section, a certified

person designated by the operator must make a preshift examination

within 3 hours preceding the beginning of any 8-hour interval during

which any person is scheduled to work or travel underground. No

person other than certified examiners may enter or remain in any

underground area unless a preshift examination has been completed

for the 8-hour interval. The operator must establish 8-hour intervals

of time subject to the required preshift examinations.

35 Section 75.360(f) requires as follows:

At each working place examined, the person doing the preshift

examination shall certify by initials, date, and the time, that the

examination was made. In areas required to be examined outby a

working section, the certified person shall certify by initials, date, and

the time at enough locations to show that the entire area has been

examined.

Ex. 38.33 Fazzolare determined that the mine examiner had not conducted a pre-shift

examination of the three right-side entries in violation of § 75.360(a)(1). Tr. 723-724.34

Fazzalore did not know who the pre-shift examiner was and never spoke to him. Tr. 741. 

Fazzolare determined that undiscovered hazards, including but not limited to the wide

entry contributing to a roof fall hazard, would affect nine miners on the unit. Tr. 732-33. 

Fazzolare also testified that methane gas buildup was another concern in the absence of a

pre-shift inspection. Tr. 732. The Secretary argues that Fazzolare’s determination regarding the

likelihood and severity of injury was reasonable, particularly given the history of roof falls at the

WLPM. Tr. 730. 

Fazzolare testified that he could have cited the condition as a violation of section

75.360(f) because of the absence of the DTIs. Tr. 724.35 Fazzolare testified that the hazard of

not having DTIs in place is that miners would not know whether a pre-shift examination has

been performed or whether hazards exist in a particular area of the mine. Tr. 730. When asked

by the undersigned, why he did not cite § 75.360(f), Fazzolare testified that “[o]nce I found the

wide spot in the entry, I was convinced that no pre-shift had been performed in them three

entries.” Tr. 751-52. 

36 FMSHRC Page 1742
Fazzolare determined that Respondent’s negligence was high and the violation was an

unwarrantable failure because he determined that the preshift examiner, an agent of the operator,

made a conscious decision not to do the pre-shift and no one on his shift knew of any hazards. 

Tr. 735. Fazzolare determined that the hazard within the #1 entry was obvious, existed for at

least one shift, and would have been noticed by an examiner had a pre-shift been conducted. Tr.

728- 31; P. Ex. 39, at 3 and 12. 

During the third day of hearing, the Secretary moved to plead in the alternative that the

conditions set forth in Order No. 842870 also violated section 75.360(f). Tr. 736, 738. The

undersigned initially denied the motion because it should have been made at the outset of the

hearing, particularly since the Secretary was aware through pre-trial conference calls that the

Order essentially involved a credibility dispute as to whether a pre-shift was done (Tr. 739), and

the allegation that there were no DTIs could be substantially different from the allegation that no

preshift examination was done, particularly in the context of the unwarrantable failure

designation. Tr. 738. At the conclusion of the hearing, however, the undersigned reconsidered,

granted the motion to amend, and issued a bench decision, which vacated Order No. 8428701 on

credibility grounds under either standard. Tr. 1056. 

As further explained below, the undersigned credited the testimony of third-shift mine

examiner Norman Risley, that he conducted a pre-shift examination of the right-side rooms, the

left-side rooms, and the panel entries (Tr. 758); that Risley walked to each face, checked for

methane or other gas, examined the bolts, roof and ribs, and ensured that ventilation curtains

were hung (Tr. 759); and that Risley wrote the date and time and his initials on a paper tag that

was hung from a roof bolt with wire at each entry. Tr. 759-60; see also R. Ex. 6 (statement

given to compliance manager Grounds the next day). The undersigned also credited scoop

operator Tim Whiting’s testimony, which partially corroborated Risley’s testimony that he hung

the tags, because Whiting credibly testified that he saw Risley do so at the number 3 face. Tr.

770-71, 775. Finally, the undersigned credited the testimony of all of Respondent’s witnesses

that they saw Risley in the right-side rooms. See generally Tr. 1056-57. 

b. Respondent’s Evidence

Third-shift certified mine examiner, Norman Risley, credibly testified that during the

midnight shift of May 9, 2011, he conducted a pre-shift examination of the right-side and left

side faces and set of rooms on Unit 5. Tr. 754-58. Risley also pre-shifted the two rescue

chambers, the power center, transformer, and the tailpiece on Unit 5. Tr. 759. 

Risley was required to conduct his examination within three hours of the start of the

oncoming day shift, which began at 7:00 a.m. Accordingly, Risley began his pre-shift

examination about 4:00 a.m. Tr. 723, 727-28, 756-57. 

Risley credibly testified that he examined the right-side rooms, the left-side rooms, and

the panel entries. Tr. 758. Risley walked to each face, checked for methane or other gas,

examined the bolts, roof and ribs, and ensured that ventilation curtains were hung. Tr. 759. At

36 FMSHRC Page 1743
each entry, Risley wrote the date and time and his initials on a paper tag that was hung from a

roof bolt with wire. Tr. 759-60; R. Ex. 6 (statement given to compliance manager Grounds the

next day). When asked by the undersigned whether he specifically remembered hanging the

tags, Risley testified affirmatively and recalled that he asked scoop operator Tim Whiting to

move out of his way so he could get to a face to hang a tag. Tr. 760-61. 

On direct examination, Risley was shown Respondent’s Exhibit 11. That exhibit was a

section 104(a) citation that inspector Fazzolare wrote under 75.220(a)(1) for failure to follow the

approved roof control plan because the no. 1 entry exceeded the 20-foot width set forth in the

plan by approximately one and three quarter feet over a six-foot distance. Risley testified that he

never noticed the condition during his examination. Tr. 761. 

Risley had left the mine for the day by 9:30 a.m., i.e., the time Fazzolare wrote the Order

(P. Ex. 38) alleging a violation of 75.360 (a)(1) because there was no evidence of a pre-shift

examination conducted for the right side rooms on Unit 5 for the day shift production crew. Tr.

763. The next day, compliance manager Grounds spoke to Risley about the Order in the

examiner’s room where Respondent keeps its books. Tr. 76-62. Risley told Grounds that it was

a bunch of bull because Risley made the rooms and that Grounds should check with Whiting,

who was present at the time. Tr. 762-63. The Secretary’s cross of Risley was minimal, with

little value. Tr. 765. 

Scoop operator Whiting credibly testified that he was working the midnight or third shift

(11 p.m. to 7 a.m.) on May 8-9, 2011, when he observed Risley conduct a pre-shift examination

of the right-side rooms on Unit 5. Tr. 766-69. Whiting was sitting in his scoop in the no. 3 room

waiting to clean that room after the roof bolters finished bolting a fresh cut. Tr. 769-70. While

waiting there, Whiting saw Risley walk by and into the entry of the no. 3 room, conduct his

examination, and hang a paper tag with wiring on a roof bolt plate to post DTIs. Tr. 770-71,

775. From where he was sitting, Whiting could not see the no. 1 and 2 rooms. Tr. 771. 

As Risley apparently continued his examination of the other right-side rooms, section

foreman Keith Hawkins instructed Whiting to go outby and grab the wet duster and start dusting

the faces. Tr. 771-72. Whiting then used the scoop to run the hydraulically operated wet duster

on the right and left-side rooms. Whiting received assistance from left-side scoop operator, Nick

Courtney, who operated the hose. Tr. 772-73. 

After the Order was written by Fazzolare, Risley told Whiting about it, presumably the

next day. Whiting testified that Risley appeared upset and told Whiting that he had made the

examination. Tr. 773-74. Whiting told Risley that Whiting saw him hang a tag in the no. 3

room. Whiting offered to vouch for Risley before compliance manager Grounds. Tr. 773-74. 

On the basis of the record before me, I have no basis to conclude that they conspired to produce

false testimony under oath. 

 

Grounds took a statement from Whiting the day after the Order was issued. R. Ex. 8. 

Whiting confirmed the accuracy of the statement except for the last notation, which states that

36 FMSHRC Page 1744
Risley “was going toward the face of Room #3 to make his examination.” Id. Whiting testified

that he watched Risley actually walk up to the no. 3 face to hang the tag. Tr. 775. In the absence

of any impeachment or effective cross examination on this issue, I credit Whiting. 

Whiting expressed the belief that the pressure from the dust and water that came out of

the wet duster blew the tag(s) down. Tr. 775-76. On cross, Whiting acknowledged that the tags

might still be present on the mine floor, although equipment ran through the area. He further

acknowledged that the wires “would probably still be there.” Tr. 775-76. The Secretary argues

that this is significant because neither Fazzalare nor the two employees who accompanied him

could find any wires, tags, or other evidence of DTIs for the prior shift in the three entries on the

right side. Tr. at 724-26, 729, 731, 735, 751. Thus, the Secretary argues that the lack of DTIs on

the right side for the prior shift establishes a violation of section 75.360(f).

Section foreman Keith Hawkins also testified that he observed Risley make an

examination of the right-side rooms of Unit 5 on the morning in question. Tr. 779-80. Hawkins

was checking on repairs to the miner that were made between 3:15 and 4:30 a.m. (R. Ex. 4). 

Hawkins was engaged in conversation with shift leader Cliff Dillard and Whiting in the

intersection of entry no. 1 and room no. 3, when he observed Risley walk by and use a spotter to

make the face in the right-side rooms. Tr. 780-81, 786. Hawkins did not observe whether

Risley hung any tags. Tr. 782. 

The next day, when Hawkins heard about the Order, he went to see Grounds to tell him

that Hawkins had seen Risley go up in the face and use a spotter. Tr. 783. Hawkins testified that

R. Ex. 7 accurately reflects the conversation he had with Grounds. The Secretary declined to

cross examine Hawkins. Tr. 783. 

Shift leader Dillard also testified that he observed Risley conduct a pre-shift examination

of the right set of rooms of Unit 5 during the midnight shift on May 8-9, 20011. Tr. 785-86. 

Dillard corroborated Hawkins’s testimony that they were talking in the intersection of entry no. 1

and room no. 3. Dillard testified that he saw Risley walk out of the no. 1 room and across the no.

2 room, and then out past Dillard and Hawkins and end up in the no. 3 room. Dillard specifically

testified that he saw Risley go in and out of each of the three rooms on the right side, but did not

see Risley hang any tags. Tr. 786, 788-89. 

Dillard testified that Hawkins told him about the Order the next day and Dillard was

shocked because he saw Risley there the day before to make the examinations. Tr. 786-87. 

Dillard testified that Risley would typically hang his DTIs on a roof bolt in the second row from

the face on the right or return air side of the entry where an air reading was taken. Tr. 789. 

Dillard confirmed that Respondent’s Exhibit 9 was an accurate statement of what was

discussed with Grounds on May 10, 2011. Tr. 787. Respondent’s Exhibit 9 states, inter alia,

that “[i]f the examiner tags are not twisted, the wet duster can knock the tags down from the roof

bolt plates.” Neither the Secretary nor Respondent ever asked Risley whether he twisted the

tags. 

36 FMSHRC Page 1745
Compliance manager Grounds testified that Respondent’s walkaround representative

Vernon Dunn called the surface and informed Grounds that inspector Fazzolare was going to

issue the Order. Tr. 791. Grounds spoke with members of the crew the next day and prepared

written statements from Risley, Hawkins, Whiting, and Dillard. Tr. 791-92; see also R. Exs. 6-9.

After the interviews, Grounds concluded that Risley had conducted the pre-shift examination of

the right-side rooms on unit 5 during the third shift on May 9, 2011. Accordingly, Risley did not

receive any discipline. Tr. 792. 

On cross, Grounds testified that he did not go underground to check on the condition

cited in the Order. Rather, Grounds spoke with Dunn, who informed him that no initials were

identified or tags found on the right side, but DTIs had been identified on the left side. Tr. 794-

95. 

On rebuttal, and in support of the Secretary’s alternative pleading, inspector Fazzolare

testified that he issued Order 8428701 because he could find no evidence of a pre-shift or DTIs

in the 3 entries on the right side. Tr. 797-98. Fazzolare testified that he did see enough DTIs in

the left side entries and the advanced entries to ensure that Respondent had pre-shifted those

areas. Tr. 798, 802. He further testified that in his experience, it was unlikely that a tag wired to

a roof bolt would fall down, and that it was “impossible” for all three tags to have disappeared. 

Tr. 798-99. Fazzolare further testified that if a wet duster caused a tag to fall down, the wire

would be left on the roof bolt, and he did not see any evidence of that. Tr. 799. 

Respondent declined to cross examine Fazzolare on rebuttal. 

In response to questioning from the bench, Fazzolare testified that he traveled with Dunn

to the face in each of the rooms on the right side. After discovering the wide spot in the last

room, Fazzolare asked Dunn to help him find the DTIs to show that the examiner had been there. 

Fazzolare told Dunn that if you can find one set of DTIs (in the right side rooms), I will not issue

the Order. Tr. 799-800. 

The Secretary argues that at most, Respondent’s witnesses established that Risley made a

pre-shift examination of the left side and main set of entries and the #3 entry on the right side. 

Although several of Respondent’s witnesses saw Risley in the three right-side entries, none saw

Risley hang a tag in the #1 and #2 entries and none testified as to the length of time Risley was

in each of these entries. Tr. 770-71, 773, 775, 782, 786-88, 792. The Secretary argues that

Respondent’s witnesses failed to refute Fazzolare’s testimony regarding the absence of the tags

or other DT&Is in the right-side entries. Thus, the Secretary argues that the evidence, even

considered in the light most favorable to Respondent, shows a violation of section 75.360(f) for

the #1 and #2 right-side entries. Given Risley’s failure to identify the excessive width in the #1

entry as a hazardous condition, the Secretary further argues for a violation of section

75.360(a)(1). Tr. 724, 729-30, 761.

36 FMSHRC Page 1746
3. Legal Analysis 

As noted, at the close of the hearing, the undersigned granted Respondent’s motion to

vacate Order No. 842870 and found that no violation of section 75.360(a)(1) or section 75.360(f)

had occurred. Tr. 1056-57. I credited Risley’s testimony that he conducted a pre-shift

examination of the right-side rooms, which was corroborated by all of Respondent’s witnesses. 

Tr. 1056. I further credited Risley’s testimony that he hung tags denoting his DTI’s in the

right-side rooms, which testimony was partially corroborated by Whiting, who observed him

hang one such tag at the number 3 face. Tr. 1056. Having reviewed the record, I reaffirm my

credibility findings and also credit section foreman Hawkins that he saw Risley walk by and use

a spotter to make the face in the right-side rooms. Tr. 780-81, 786. 

The fact that the DTI’s were not present when Fazzolare conducted his inspection at 9:30

a.m. does not establish that Risley did not hang the tags when he conducted his examination

about 4 a.m. On questioning from the undersigned, Risley specifically testified that he hung all

three tags on the right-side entries. Tr. 760. Whiting corroborated Risley’s testimony for the

right-side number 3 room. Tr. 770. It is conceivable, given the use of the wet rock duster after

Risley conducted his examination, that the tags were blown down due to the pressure of the

machine combined with the heavy mixture of dust and water it sprays. Tr. 775.

I find it possible that the pressure or force from the mixture of dust and water emanating

from the wet duster after Risley conducted his examination blew the paper tags down and

rendered them irretrievable, especially if the tag wires were not twisted in place. Tr. 775. It was

certainly not impossible, as Fazzolare testified, particularly with equipment running through the

area and the pressure of the machine combined with the heavy mixture of dust and water that it

sprays. Tr. 775-76. While the wires would probably still be there, the Secretary failed to

establish the exhaustiveness or specific location of Fazzolare’s search for said wires. As

Fazzolare acknowledged, “[o]nce I found the wide spot in the entry, I was convinced that no preshift had been performed in them three entries.” Tr. 751-52. In my view, Fazzolare had made

up his mind that no pre-shift had been performed and did not diligently search for the DTIs or

attempt to speak to the examiner Risley. 

Clearly, Fazzolare relied on his issuance of Citation No. 8426700, which alleged that the 

no.1 room was wide by less than two feet for a distance of six feet in length, as evidence that no

pre-shift examination was performed. Tr. 728; R. Ex. 11. Such reliance is suspect. It is likely

that the cited area was mined after Risley conducted his examination because it was inby the last

open crosscut and mined recently. The Secretary failed to show that the condition was present

when Risley was scheduled to conduct his pre-shift examination. Tr. 748. The mere fact that

Fazzolare observed the condition cited in Citation No. 8428700 does not establish that Risley did

not conduct the examination, particularly when Risley and essentially four other witnesses

confirmed that he did.

I was convinced during the hearing by Risley’s demeanor and clear and adamant

testimony upon questioning from the undersigned that he conducted a pre-shift examination of

36 FMSHRC Page 1747
36 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

the right-side rooms and that he hung three tags denoting his DTI’s in the right-side rooms. Tr.

760. Risley’s testimony that he examined the right-side rooms was corroborated by Whiting,

Hawkins and Dillard, each of whom observed him do so. Tr. 770, 779-80, 786. Risley’s

testimony that he made the examinations by DTI’s is partially corroborated by Whiting, who

observed him hang a tag at the number 3 face. Tr. 770, 775. Accordingly, I reaffirm my bench

decision and vacate Order No. 842870. 

VII. Order

WHEREFORE, the parties’ joint settlement motion and agreement made on the record

and set forth in Joint Exhibit 2 is GRANTED. It is ORDERED that Citation/Order Nos.

8030991, 8030700, 8428798, and 8428776 be modified to reduce the level of negligence from

“high” to “moderate;” Citation No. 8030992 be modified to reduce the level of negligence from

“moderate” to “no negligence;” Citation Nos. 8436403, 8030992, 8428798, and 8428776 be

modified to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and

to delete the significant and substantial designation; and Order No. 8030700 be modified to

change the type of action from a section 104(d)(2) order to a section 104(a) citation; and that

Citation Nos. 8428701, 8431251, and 8431250 be vacated. It is further ORDERED that the

operator pay an a penalty of $116,662 for all litigated citations and $192,754 for all settled

citations for a total penalty of $309,376 within thirty days of this order.36

/s/ Thomas P. McCarthy 

Thomas P. McCarthy

Administrative Law Judge

36 FMSHRC Page 1748
Distribution: 

Letha Miller, Esq. & Breyana Penn, Esq., Office of the Solicitor, U.S. Department of Labor,

1999 Broadway, Suite 800, Denver, CO 80202-5710

Arthur M. Wolfson, Esq. & Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway Center,

401 Liberty Ave., Suite 1500, Pittsburgh, Pennsylvania 15222

36 FMSHRC Page 1749
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-3577 / FAX: 303-844-5267 

June 20, 2014 

 

DEFAULT DECISION

 This case is before me upon a petition for assessment of civil penalty under Section 

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

The case involves four citations issued under section 104(a) and a proposed civil penalty of 

$400.00. A conference call was scheduled in this case on May 14, 2014, but Gordon Sand 

Company chose not to participate in the call. A conference call is equivalent to a court 

appearance and is especially important in a case designated for Simplified Proceedings. Gordon 

Sand Company also failed to file an answer or enter its appearance in this case, as required 

Commission Procedural Rule 102(c), which would have provided me with critical contact 

information. 29 C.F.R. § 2700.102(c). 

On May 14, 2014, I issued an order to show cause against Gordon Sand Company. In the 

show cause order I directed Gordon Sand Company to explain why it should not be held in 

default for its failure to participate in the conference call and enter its appearance in the case. I 

warned Gordon Sand that its failure to file a satisfactory response to my order by June 11, 2014, 

would result in an entry of default against Gordon Sand and the assessment of the Secretary’s 

proposed penalty of $400. 

 Gordon Sand Company failed to respond to my order to show cause.1

 Consequently, 

Gordon Sand Company is in DEFAULT. 29 C.F.R. § 2700.66. The four citations at issue are 

AFFIRMED as written by the MSHA inspector. I have reviewed the citations and the six 

penalty criteria in Section 110(i) of the Act. Based on this review I find that the penalties 

 

 1

 The order to show cause was sent to Gordon Sand Company via certified mail. The 

return receipt card was returned to the Commission with the signature of one of its agents dated 

May 19, 2014. I also note that in another case, Gordon Sand Company failed to appear at a 

scheduled hearing and I held the company in default. Gordon Sand Company, 30 FMSHRC 235 

(March 2008). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

GORDON SAND COMPANY 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2014-47-M 

A.C. No. 04-01787-332496 

Gordon Sand Company 

36 FMSHRC Page 1750
proposed by the Secretary are reasonable and are hereby AFFIRMED. Gordon Sand Company 

is ORDERED TO PAY the Secretary of Labor the sum of $400.00 within 30 days of the date of 

this decision.2

 

/s/ Richard W. Manning

Richard W. Manning 

Administrative Law Judge 

Distribution: 

D. Scott Horn, Conference & Litigation Representative, Mine Safety & Health Administration, 

991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (First Class Mail) 

George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd, Suite F, Hayward, CA 

94545-4436 (Certified Mail) 

RWM 

 2

 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. 

36 FMSHRC Page 1751
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

June 23, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

SAIIA CONSTRUCTION, LLC, 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

FREDERICK LOONEY, Agent of SAIIA 

CONSTRUCTION, LLC, 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2010-877-M 

A.C. No. 01-02985-220540 (1KJ) 

Mine: Omya Alabama Plant 

Docket No. SE 2012-119-M 

A.C. No. 01-02985-272123A 

Mine: Omya Alabama Plant 

DECISION

Appearances: Melanie L. Paul, Esq., Office of the Solicitor, Atlanta, Georgia, for 

Petitioner; 

John Hargrove, Esq., Bradley Arant Boult Cummings, LLP, Birmingham, 

Alabama, for Respondents. 

Before: Judge Paez 

This case is before me upon the petitions for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to sections 105(d) and 110(c) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815(d), 820(c). In dispute are one section 104(d)(1) 

citation issued to Saiia Construction, LLC (“Saiia”) and a companion section 110(c) penalty 

assessment issued to Frederick Looney (“Looney”), alleging his personal liability as an agent of 

Saiia. To prevail, the Secretary must prove his charges “by a preponderance of the credible 

36 FMSHRC Page 1752
evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 

1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), 

aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. 

Cir. 1998). This burden of proof requires the Secretary to demonstrate that “the existence of a 

fact is more probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 

2001). 

I. STATEMENT OF THE CASE

The single alleged safety violation in this case was issued to Saiia as a contractor at the 

Omya Alabama Plant limestone quarry on March 31, 2010. Citation No. 8546029 charges Saiia 

with a violation of 30 C.F.R. § 56.14100(c) for operating a front-end loader with safety defects in 

the stockpile area.1 The Secretary designated the citation as significant and substantial (“S&S”)2

and as the result of Saiia’s unwarrantable failure3

 to comply with a mandatory health or safety 

standard. In addition, the Secretary characterized Saiia’s level of negligence as high and 

proposes a penalty of $12,563.00. Lastly, the Secretary proposes that Looney pay a penalty of 

$3,900.00 under section 110(c) of the Mine Act in connection with Citation No. 8546029. 

Chief Administrative Law Judge Robert J. Lesnick assigned Docket Nos. SE 2010-877-

M and SE 2012-119-M to me, and I held a hearing in Birmingham, Alabama.4

 The Secretary 

presented testimony from MSHA Inspector DeWayne Ogden, retired MSHA Inspector Harry 

1

 Section 56.14100(c) provides: 

 When defects make continued operation hazardous to persons, the defective items 

 including self-propelled equipment shall be taken out of service and placed in a 

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

 marking the defective items shall be used to prohibit further use until the defects 

 are corrected.

30 C.F.R. § 56.14100(c). 

2

 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.” 

3

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Mine Act, 

30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused 

by an “unwarrantable failure of [an] operator to comply with . . . mandatory health or safety 

standards.” 

4

 In this decision, the hearing transcript, the Secretary’s exhibits, and Oak Grove’s 

exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties also 

admitted a list of stipulations in a joint exhibit, which is abbreviated as “Ex. J–1.” 

36 FMSHRC Page 1753
Wade, MSHA Mechanical Engineer James L. Angel,5

 Saiia front-end loader operator Steve 

Honeycutt, Saiia Supervisor Frederick Looney, and Thompson Tractor Company Field Service 

Advisor Stephen Sadler. Saiia and Looney (collectively, “Respondents”) presented testimony 

from Thompson Tractor Company Technical Communicator Mark Schropp, Thompson Tractor 

Company Field Service Technician David Coston, and Saiia Safety Manager Richard Leemhius. 

The parties filed closing briefs. Respondents also filed a reply brief. 

 

II. ISSUES

 The Secretary argues that the condition of Saiia’s front-end loader was properly cited as a 

violation, that the allegations underlying the citation are valid, and that the penalty he has 

proposed for Saiia is appropriate. (Sec’y Br. at 6–21, 23–24.) The Secretary also contends that 

his charges and proposed penalty under section 110(c) are valid and appropriate. (Id. at 21–25.) 

In contrast, Respondents dispute the fact of violation, the Secretary’s allegations regarding 

gravity and negligence, and the section 110(c) charges against Looney. (Resp’t Br. at 5–14; 

Resp’t Reply at 2–4.) 

 Accordingly, the following issues are before me: (1) whether the cited condition violated 

the Secretary’s mandatory health or safety standards regarding mobile equipment; (2) whether 

the record supports the Secretary’s assertions regarding the gravity of the alleged violation, 

including whether it is S&S; (3) whether the record supports the Secretary’s assertions regarding 

Saiia’s negligence, including the unwarrantable failure determination, in committing the alleged 

violations; (4) whether the record supports holding Frederick Looney liable under section 110(c); 

and (5) whether the Secretary’s proposed penalties against Saiia and Looney are appropriate. 

 For the reasons set forth below, Citation No. 8546029 is AFFIRMED as S&S, as an 

unwarrantable failure, and resulting from Saiia’s high negligence, and MODIFIED to reduce the 

likelihood of injury to “reasonably likely.” Additionally, the section 110(c) charges against 

Frederick Looney are AFFIRMED. 

III. FINDINGS OF FACT

A. Saiia’s Operations at the Omya Alabama Plant

 Saiia is a contractor for the Omya Corporation and removes overburden and limestone 

material at the Omya Alabama Plant limestone quarry. (Tr. 39:24–40:5, 248:18; Ex. G–6 at 6.) In 

February and March 2010, Saiia operated a Catepillar (“CAT”) 966H front-end loader five days 

a per week to scoop material, move it from place to place, and load haul trucks in the “off-road” 

 5

 Wade and Angel testified via telephone. (Unpublished Order at 2 (May 3, 2013); 

Unpublished Order at 2 (May, 8, 2013).) In addition, Angel was qualified as an expert “in the 

field of safe operation of diesel-fueled[,] earth[-]moving machines.” (Tr. 173:12–174:3.) 

36 FMSHRC Page 1754
area of the mine. (Tr. 48:8–15, 50:24–51:25, 52:9–21, 54:16–55:4, 97:17–23, 114:7–10, 116:19–

25.) 

 At the time, the “off-road” area was used as a storage area for limestone material between 

the quarry’s pit and plant areas. (Tr. 52:9–53:5.) The off-road area was gravelly, with large 

rocks—also known as pinnacles—embedded in the ground and protruding between two and six 

inches above the surface. (Tr. 63:24–64:24, 114:23–24; Ex. G–1.) The area also contained large 

loose rocks. (Tr. 65:1–2.) These pinnacles and loose rocks would cause the loader to bounce, 

sway, or loose traction. (Tr. 64:12–15, 65:2–7.) In addition, the off-road area included at least six 

stockpiles of wet limestone material that were approximately ten-feet high. (Tr. 53:2–12, 86:13.) 

The off-road area was slightly graded and included elevated berms. (Tr. 53:25–54:12, 62:19–23.) 

 

 Saiia rented this CAT loader from Thompson Tractor on February 16, 2010. (Ex. J–1; Ex. 

G–12.) According to the rental agreement, Thompson Tractor performed all required 

maintenance on the loader. (Ex. G–12; Tr. 152:21–153:1, 207:13–208:4.) However, Saiia was 

permitted to make minor repairs to the loader, such as replacing broken hoses. (Tr. 153:2–10, 

154:2–4, 154:24–155:5.) Saiia maintenance man Jamie Minton was responsible for coordinating 

Thompson Tractor’s maintenance activities at the Omya Alabama Plant. (Tr. 140:6–25, 147:3–

11, 148:3–11, 293:11–14.) 

 The loader was approximately thirty-five-feet long, fifteen-feet high, and ten-feet wide. 

(Tr. 51:3–17.) Using an eight-to-ten-foot-wide bucket, the loader operator picked up material and 

moved it from one place to another. (Tr. 51:14–19, 56:2–18, 115:3.) The loader traveled 

approximately ten or fifteen miles per hour in open areas, but it slowed to five or ten miles per 

hour when moving between stockpiles or transporting material. (Tr. 55:20–56:1.) 

 The loader’s steering assembly includes both a steering wheel and a steering column, 

which are distinct parts of the steering assembly. (See, e.g., Tr. 177:7–178:24.) The steering 

wheel sat atop the steering column, and the steering column was generally locked into place. (Tr. 

177:22–178:24.) According to the CAT loader’s Operation and Maintenance Manual, the 

steering column requires service if the column itself is capable of moving more than one inch in 

any direction. (Ex. J–1.)

B. Mine Inspection – March 31, 2010

 In response to hazard complaints regarding the safety of mobile equipment, Inspector 

DeWayne Ogden performed an inspection of the Omya Alabama Plant on March 31, 2010. 

(Tr. 39:13–23.) Ogden informed Omya and Saiia management of the reason for his investigation, 

then examined Saiia’s preshift examination records. (Tr. 40:14–41:9.) In his review, Ogden 

noted that the steering column on the CAT loader had been listed as “loose” or “broken” several 

times beginning in mid-February 2010. (Tr. 41:11–16, 42:6–44:7, 100:11–101:25, 105:16–

110:20; Ex. G–2.) 

36 FMSHRC Page 1755
 Ogden then met with the loader operator who had prepared these reports, Steve 

Honeycutt. (Tr. 44:8–11.) After climbing up onto the machine, Ogden discussed the preshift 

reports and condition of the loader with Honeycutt. (Tr. 44:22–45:3, 117:14–22.) At that point, 

Honeycutt shook the steering column to demonstrate the lateral amount of movement in the 

column. (Tr. 45:1–3, 117:23–118:4.) Although Ogden did not measure the movement, he 

estimated it to be approximately six inches from center to one side. (Tr. 46:7–13.) Honeycutt 

testified that the movement was four or five inches. (Tr. 102:10–11, 104:15–23, 109:9–12, 

126:17–127:4, 127:19–128:23; Ex. G–13.) 

Ogden then spoke with Supervisor Looney and asked if he was aware of the condition. 

(Tr. 47:15–18.) According to Ogden, Looney indicated that he was aware of the movement in the 

steering column but did not remove it from service because he had no other loader available for 

use.6

 (Tr. 47:18–23.) Ogden then discussed the condition of the loader with Thompson Tractor 

Field Technician Coston, who was at the Omya Alabama Plant site to work on another piece of 

mobile equipment. (Tr. 48:8–21, 274:11–13; Ex. G–14.) After Coston observed Honeycutt move 

the steering column, Ogden testified that Coston agreed that the loader was unsafe for operation.7

(Tr. 48:22–49:7, 49:20–50:5; Ex. G–14.) 

 Ogden also sought input from Inspector Wade, who was also already present at the Omya 

Alabama Plant to investigate a highwall failure. (Tr. 47:24–48:7, 80:13–81:2.) Wade observed 

Honeycutt move the steering column and testified that the column moved approximately six to 

eight inches from center to side. (Tr. 49:20–50:4, 81:10–82:6.) According to Wade, Supervisor 

Looney told him that Saiia did not want to spend money to repair the loader because it was a 

rental. (Tr. 83:16–22.) 

 6

 Looney does not dispute that he was aware of the condition. (Tr. 133:6–22;Ex. J–1.) 

However, he personally operated the loader in February and March 2010. (Tr. 139:12–15, 

142:19–145:5, 145:25–146:2, 149:18–22, 151:23–25.) He testified that he did not remove the 

loader from service because he did not believe the loader to be unsafe. (Tr. 141:4–10, 145:11–13, 

146:9–19, 149:9–25; Ex. J–1.) He also testified that he informed Saiia’s maintenance man, Jamie 

Minton, about the condition of the loader every time Honeycutt reported it. (Tr. 148:3–8, 

150:25.) 

7

 At the hearing, Coston agreed that he observed wear in the pins and bushings of the 

steering column, as well as side-to-side movement in the column itself. (Tr. 261:20–262:15, 

267:23–268:20.) However, Coston claimed that Ogden told him “I know this machine has some 

problems. . . . [D]on’t tell me there is nothing wrong with it.” (Tr. 261:8–12.) Coston also stated 

that he did not tell Ogden that the loader was unsafe to operate. (Tr. 263:1–3, 270:14–17.) 

Instead, Coston claims that he said it was up to the inspector. (Tr. 262:14–17.) Nevertheless, 

Coston admitted that the steering column’s movement required repair and stated that it could 

present a safety hazard in certain circumstances. (Tr. 273:11–274:5; Ex. G–14.) 

36 FMSHRC Page 1756
As a result of this inspection, Ogden issued a section 107(a) imminent danger order 

directing Supervisor Looney to remove the loader from service. (Ex. G–1.) He also issued 

Citation No. 8546029, which alleged the following: 

The Caterpillar 966H front[-]end loader (S/N: A6D1193) in the off[-]road 

stockpile area was being operated with a defect affecting safety and was not taken 

out of service. The defective steering components exposed the loader operator to 

fatal injuries when they failed. The Caterpillar certified technician inspected the 

steering on the loader and stated that it was unsafe to operate. The loader was 

used daily, at least 5 times a week, to maintain the stockpiles in the off[-]road 

area. Frederick Looney, Supervisor[,] stated that he knew this condition existed 

and it has been reported to him 4 separate times on pre-operational checks. 

Frederick Looney, Supervisor[,] engaged in aggravated conduct constituting 

more than ordinary negligence. This is a[n] unwarrantable failure to comply with 

a mandatory standard. This violation is a factor cited in [an] imminent danger 

[order]. 

(Id.) Ogden marked “fatal” injuries as “highly likely,” designated the violation as S&S, and 

characterized Saiia’s level of negligence as “high.” (Id.) 

On April 15 and 16, 2010, Saiia, Thompson Tractor, and their counsel met at Thompson 

Tractor’s facility in Shelby County. (Tr. 196:6–14, 203:16–204:15, 210:12–220:20; Ex. R–9.) 

Safety Manager Leemhius and Technical Communicator Schropp testified that the group 

performed a self-examination of the CAT loader. (See, e.g., Tr. 210:12–220:20.) According to 

Leemhius and Schropp, they measured the movement of the steering column, took timing tests of 

the steering wheel’s responsiveness, and produced videos of the loader in operation in Thompson 

Tractor’s parking lot.8 (See, e.g., Tr. 210:12–220:20; see also Ex. R–12; Ex. R–13.) 

8

 I have significant concerns regarding the veracity of Saiia’s mid-April examinations 

because no MSHA personnel were present for Saiia’s self-examination of the CAT loader. Saiia 

claims to have made no repairs to the loader between the time of the citation and the April 15 

and 16 self-examination. (Resp’t Br. at 3.) Saiia also claims to have invited MSHA to this 

examination in an undated, unsigned letter and fax. (See Resp’t Br. at 3; Ex. R–2; Tr. 278:20–

279:5.) Curiously, Respondents did not explain why Saiia—which was represented by counsel at 

the time—did not document the delivery of the invitation to MSHA. Regardless of whatever 

miscommunication occurred, MSHA was not present for these examinations. I recognize and 

appreciate Respondents’ representation that no repairs had been made to the loader. Yet without 

MSHA personnel present to observe these tests or the loader itself, the results of Saiia’s selfexamination are sufficiently questionable that I accord them no weight. 

36 FMSHRC Page 1757
IV. PRINCIPLES OF LAW

 

A. 30 C.F.R. § 56.14100(c) – Defects Affecting Safety on Mobile Equipment

 Section 56.14100(c) requires operators to (1) remove from service (2) items with defects 

(3) affecting safety. 30 C.F.R. § 56.14100(c); see Dix River Stone, Inc., 32 FMSHRC 1779, 1784 

(Nov. 2010) (ALJ). A defect is “a fault, a deficiency, or a condition impairing the usefulness of 

an object or a part.” Allied Chemical Corp., 6 FMSHRC 1854, 1857 (Aug. 1984) (citing 

Webster’s Third New International Dictionary 591 (1971); U.S. Department of Interior, Bureau 

of Mines, Dictionary of Mining, Mineral and Related Terms 307 (1968).) Because section 

56.14100(c) is a broadly worded safety standard, the Commission applies the “reasonably 

prudent person test” to determine whether a “a reasonable person with knowledge of the 

particular facts, including facts peculiar to the mining industry, would recognize the existence of 

a defect constituting a hazard requiring corrective action . . . .” Lafarge North America, 35 

FMSHRC 3497, 3500–01 (Dec. 2013).

 

B. Section 110(c) of the Mine Act – Agent Liability

 Corporate directors, officers, or agents are liable under section 110(c) when they know or 

had reason to know of a violative condition, and fail to act to correct the condition. See 30 U.S.C. 

§ 820(c); Cougar Coal Co., 25 FMSHRC 513, 517 (Sept. 2003). Section 110(c) liability “is 

generally predicated on aggravated conduct constituting more than ordinary negligence.” Ernest 

Matney, 34 FMSHRC 777, 783 (Apr. 2012). 

C. Significant and Substantial Violations

 A violation is S&S “if, based on 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). 

To establish an S&S violation, 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) (footnote omitted);

see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th 

Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of 

Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). 

 The Commission has also provided guidance to Administrative Law Judges in applying 

the Mathies test. The Commission indicated that “an inspector’s judgment is an important 

element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC 

at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion 

in crediting opinion of experienced inspector). The Commission has also observed that “the 

reference to ‘hazard’ in the second element is simply a recognition that the violation must be 

36 FMSHRC Page 1758
more than a mere technical violation—i.e., that the violation present a measure of danger.” U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Cement Div., 

National Gypsum Co., 3 FMSHRC 822, 827 (Apr. 1981). Moreover, the Commission clarified 

“[t]he correct inquiry under the third element of Mathies is whether the hazard identified under 

element two is reasonably likely to cause injury.” Black Beauty Coal Co., 33 FMSHRC 1733, 

1742 n.13 (Aug. 2012). Finally, the Commission has specified that evaluation of the reasonable 

likelihood of injury should be made assuming continued mining operations. U.S. Steel Mining 

Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 

1574 (July 1984)). 

D. Unwarrantable Failure of Operator to Comply with Mandatory Standards

In Emery Mining, the Commission determined that an unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987). 

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, 52 F.3d at 

136 (approving the Commission’s unwarrantable failure test). 

 Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist, 

such as the length of time that the violation has existed, the extent of the violative condition, 

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 

1998). These factors are viewed in the context of the factual circumstances of each case, and 

some factors may not be relevant to a particular factual scenario. Consolidation Coal Co., 22 

FMSHRC at 353. All relevant facts and circumstances of each case must be examined to 

determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Id.

E. Penalty Assessment – Section 110(i)

 Section 110(i) of the Mine Act outlines six criteria I must consider in assessing civil 

penalties: the operator’s history of previous violations; the appropriateness of the penalty relative 

to the size of the operator’s business; the operator’s negligence; the penalty’s effect on the 

operator’s ability to continue in business; the violation’s gravity; and the demonstrated good 

faith of the operator in attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). These same section 110(i) factors are also applicable when assessing 

penalties in section 110(c) cases. Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764–66 

36 FMSHRC Page 1759
(Aug. 2012). In the section 110(c) context, the “relevant inquiries include whether the penalty 

will affect the individual’s ability to meet his financial obligations and whether the penalty is 

appropriate in light of the individual’s income and net worth” but should “not include the size of 

the mine [or] . . . the penalties levied against the corporation.” Id. at 1764–65. 

 

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW 

A. Further Findings of Fact 

1. Steering Column Movement

 At the hearing, the Secretary and Respondents presented conflicting testimony and 

evidence regarding the amount of movement found in the CAT loader’s steering column. The 

Secretary contends that the steering column moved between four and eight inches from center to 

side. (Sec’y Br. at 7–8.) Moreover, the Secretary disputes the veracity of Saiia’s self-examination 

on April 15 and 16. (Sec’y Br. at 8–10.) In contrast, Respondents contend that Saiia and 

Thompson Tractor’s mid-April self-examination demonstrates that the steering column moved 

only one inch from center to side and one inch from front to back. (Resp’t Br. at 3.) 

 The evidence before me overwhelmingly supports a finding that the CAT loader’s 

steering column moved approximately six inches from center to side. First, operator Honeycutt 

indicated that the steering column moved between four and five inches and repeatedly marked 

the steering column as loose or broken in his preshift reports.9

 Second, Inspectors Ogden and 

Wade each observed Honeycutt manipulate the steering column from just a few feet away and 

estimated that the steering column moved between six and eight inches. Third, Field Technician 

Coston characterized the movement of the steering column as “excessive.” (Tr. 270:18–273:2; 

Ex. G–14.) Finally, it is uncontroverted that the manufacturer’s instructions suggest replacing the 

bushing and pin when movement in the steering column exceeds one inch. (Ex. J–1; Ex. G–5; 

Ex. R–3; Ex. R–14.) Indeed, the bushing and pin were replaced in this loader after the issuance 

of the citation. (Ex. G–4.) This evidence all strongly suggests that the loader’s steering column 

moved between six and eight inches from center to side. Moreover, I have accorded no weight to 

Saiia’s mid-April self-examination. See discussion supra footnote 8. 

 9

 Honeycutt repeatedly characterized the amount of movement as four or five inches from 

center to side. (Tr. 102:10–11, 104:15–23, 109:9–12, 126:17–127:4.) However, when 

Respondents’ counsel asked about the amount of movement, Honeycutt claimed the total amount 

of movement from left to right was four or five inches. (Tr. 128:10–22.) This “clarification” 

contradicted the bulk of his testimony. Critically, it also contradicted a statement he made during 

MSHA’s section 110(c) investigation. (Ex. G–13 (“[Y]ou could move [the steering column] . . . 

about 4 or 5 inches in all directions.”) (emphasis added).) Given the evidence before me, I 

therefore credit Honeycutt’s testimony that the steering column moved four or five inches from 

center to side. 

36 FMSHRC Page 1760
 In addition, Respondents argue that Inspectors Ogden and Wade did not physically 

measure, test, or document the movement of the steering column. (Resp’t Br. at 2–3, 5–6; Resp’t 

Reply Br. at 2.) Thus, Respondents contend that the Secretary has not demonstrated that the 

steering column moved. (Resp’t Br. at 2–3, 5–6; Resp’t Reply Br. at 2.) I recognize that certain 

circumstances may require fine measurements. See Lafarge North America, 35 FMSHRC at 

3501–02. Such precision is not necessary in this case. Inspectors Ogden and Wade were standing 

just a few feet away when they estimated the steering column’s movement. Given their 

proximity to the steering column and the amount of movement they observed, Ogden and Wade 

need not have used a tape measure to establish that movement or to confirm it exceeded the oneinch limit that the CAT loader’s manual suggests. 

 Based on the evidence before me, I therefore find that the steering column moved 

approximately six inches from its center position to either side. 

2. Supervisor Looney’s Rationale For Allowing Continued Operation of the 

CAT Loader 

 According to Inspector Ogden, Supervisor Looney indicated that he did not remove the 

CAT loader from service because Saiia had no other loader available for use. Additionally, 

Inspector Wade claimed that Looney admitted Saiia did not want to spend money to repair the 

loader’s steering column because it was a rental. Thus, the Secretary insists that Respondents did 

not remove the loader from service and have it repaired for financial reasons. (Sec’y Br. at 18–

19.) In contrast, Looney repeatedly and consistently testified that he did not remove the loader 

from service because he had personally operated it and did not believe it was unsafe. (Tr. 

139:12–15, 141:4–10, 142:19–145:5, 145:11–13, 145:25–146:2, 146:9–19, 149:9–25, 149:18–

22, 151:23–25.) 

 

 Three factors convince me that Looney allowed the loader to continue to operate because 

he believed it was safe. First, Looney was a credible and believable witness. As with almost all 

operator-agents, Looney had an incentive to provide self-serving testimony. Instead, Looney 

neither evaded questions nor equivocated regarding facts that subjected him to liability in this 

case. Such candor suggests to me that Looney is a credible witness. Second, loader operator 

Honeycutt also credibly testified that he found the loader to be safe. (Tr. 122:11–22, 123:16–21.) 

Honeycutt’s opinion—like Looney’s—may not have been objectively reasonable given the facts 

of this case. See discussion infra Part V.B.1. Yet, Honeycutt’s opinion supports a finding that 

Looney likewise found the loader to be safe. Finally, it is unclear whether Saiia would have been 

responsible for any of the relatively small repair charges or that the repairs would have taken 

more than a few hours. (Tr. 223:10–14, 254:12–255:5, 298:8–11; Ex. G–4.) In light of these 

relatively small or nonexistent costs, I have serious doubts regarding Saiia’s financial incentive 

to forgo repairs in this case. 

 Given the above factors, I credit Supervisor Looney’s testimony that he allowed the CAT 

loader to continue in service because he believed the loader remained safe to operate.

 

36 FMSHRC Page 1761
B. Citation No. 8546029 – Saiia

1. Violation

In this case, Inspector Ogden found the CAT loader in operation during his inspection. I 

have also found that the loader’s steering column moved approximately six inches from center to 

side, and it is uncontroverted that the steering column required repairs. Indeed, operator 

Honeycutt characterized the steering column as “broken” several times in his preshift reports. I 

therefore determine that the steering column contained a defect and that the loader had not been 

removed from service. 

Consequently, this case turns on whether a reasonably prudent person with knowledge of 

the facts particular to the mining industry would recognize that the steering column’s movement 

affected the safety of the loader. At the hearing, Respondents’ counsel repeatedly elicited 

testimony regarding timing tests designed to gauge the performance of the steering system. (See, 

e.g., Tr. 71:22–72:22.) Respondents claim that the movement in the steering column did not

affect that actual steering system. (Resp’t Br. at 4–5; Ex. G–7 at 5; Ex. G–8 at 6; Ex. G–9 at 6) 

Respondents therefore conclude that the steering column movement “cannot affect safety” 

because the steering system functioned properly. (Resp’t Reply Br. at 2.) 

Nevertheless, Respondents’ argument fundamentally misunderstands the Secretary’s 

theory. Regardless of whether the steering wheel would properly engage the loader’s steering 

mechanism, the Secretary contends that the movement in the steering column itself affected the 

operator’s ability to control the loader when making a sharp turn. (Sec’y Br. at 11; see also Tr. 

179:23–180:9, 182:4–183:14, 252:3–12.) The Secretary also argues the conditions found in the 

off-road area increased these dangers because they would jostle the steering wheel in the 

operator’s hands. (Sec’y Br. at 11; Ex. R–15 at 2.) As MSHA Engineer Angel succinctly 

explained: 

The thing about mining is that conditions change rapidly, trucks coming 

in, stockpiles building up to confine the space of the operation. Because 

conditions change, the routine operation of the vehicle, the loader, may 

not continue. But the loader operator may get himself into a position 

where emergency steering is required, abrupt change of direction is 

needed to avoid a truck, to reposition the machine because he’s off 

position or something like that. And in that case, the loss of . . . control, 

an accident is more likely. 

(Tr. 185:25–186:10.) Given the context in which this loader operated, I conclude that the 

function of the steering system is irrelevant to whether the movement of the steering column 

itself affected safety. 

Respondents also note that Honeycutt and Looney found the loader safe to operate. 

(Resp’t Br. at 6, 10; Resp’t Reply Br. at 3.) Although I believe both witnesses testified honestly, 

see discussion supra Part V.A.2, the question before me is whether a reasonably prudent person 

would recognize that the steering column defect constituted a hazard requiring corrective action. 

36 FMSHRC Page 1762
Here, the CAT loader operated in a rocky, uneven, and slick stockpile area in tandem with other 

pieces of oversized mobile equipment. The area also contained grades and berms. Inspectors 

Ogden and Wade and MSHA Engineer Angel each credibly testified that the moving steering 

column would affect the loader operator’s ability to maintain control of the machine in this 

off-road environment. (Tr. 57:12–58:8, 61:18–62:10, 82:24–83:2, 85:12–18, 86:6–86:18, 

180:14–181:9; 185:1–5, 186:3–25.) On the day of the inspection, Thompson Tractor Field 

Technician Coston also indicated that in certain circumstances the movement of the steering 

column would constitute a safety hazard. (Tr. 273:3–274:5.) Similarly, Saiia Safety Manager 

Leemhius conceded that if the steering column was “actually broken,” the condition presented a 

safety hazard. (Tr. 300:4–7.) 

 Looking at the evidence before me, I therefore determine that a reasonably prudent 

person familiar with the facts of this case would recognize the existence of a defect requiring 

corrective action. Given the mobile equipment, slight grades, and berms present in the stockpile 

area, emergency maneuvers could mean the difference between an accident and continued safe 

operations. In this environment, a loader operator needs complete control of the machine at all 

times. Yet, the loader in question operated in uneven terrain that could jostle a driver’s hands at 

precisely the time a quick turn is necessary. Thus, a reasonably prudent person would recognize 

that several inches of movement in the steering column presented dangers requiring corrective 

action. 

 In view of the above, the Secretary has demonstrated all three required elements. 

Accordingly, I conclude that the movement in the loader’s steering column constitutes a 

violation of 30 C.F.R. § 56.14100(c). 

 

2. Gravity and S&S Determinations

 Saiia’s violation of section 56.14100(c) establishes the first element of the Mathies test 

for an S&S violation. The second element of the Mathies test asks whether the violation 

contributed to a discrete safety hazard; that is, whether the violation provides a measure of 

danger to safety. Here, Inspectors Ogden and Wade and MSHA Engineer Angel credibly 

testified that the violative conditions contributed to a safety hazard of flipping the loader, 

colliding with other pieces of machinery, or overtraveling the berms surrounding the off-road 

area. Indeed, in concluding that the movement in the loader’s steering column constituted a 

violation, I have determined that a reasonably prudent person would recognize that such 

movement in the steering column constituted a defect affecting safety. Similarly, I determine that 

the violations contributed to discrete safety hazards of flipping the loader, colliding with other 

machinery in the off-road area, and overtravelling the area’s berms. The Secretary has therefore 

met his burden of proof on the second element of Mathies. 

 

 The third and fourth elements of Mathies ask whether the safety hazard is reasonably 

likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this case 

are highly likely to be fatal, and I recognize that Ogden issued an imminent danger order in this 

case. (Ex. G–1; Tr. 61:18–62:10.) Although the likelihood and severity of injury will be readily 

36 FMSHRC Page 1763
apparent in some contexts, see, e.g., Blue Diamond Coal Co., 36 FMSHRC 541, 569 (Feb. 2014) 

(ALJ) (indicating that falling mine roof is likely to cause serious or fatal injuries), fatal injuries 

are not comparably self-evident in the case before me. Yet, the Secretary provided no details 

regarding the height of the berms in question or the size and speed of the haul trucks and other 

vehicles operating in the off-road area. Instead, he relies on the opinions of Inspectors Ogden and 

Wade to demonstrate that the injuries in this case would be reasonably serious. These are 

significant gaps in the Secretary’s case, and I am left to puzzle my way through the evidence to 

determine whether fatal injuries are highly likely to result if a CAT loader moving at five to 

fifteen miles per hour overturned, overtravelled the berms, or collided with another piece of 

machinery. Critically, I note that the Secretary’s own expert never indicated that the movement 

in the steering column was highly likely to lead to an accident. Instead, MSHA Engineer Angel 

stated that steering column movement made a loss of control accident “more likely.” (Tr. 186:9–

10.) In light of the aforementioned gaps and Angel’s testimony, I am not convinced that fatal 

injuries are highly likely. 

 Nevertheless, I recognize that the opinion of an experienced inspector is entitled to 

significant weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) 

(relying on the opinion of an experienced inspector to conclude that the substantial evidence 

supported an ALJ’s S&S determination). Inspector Wade, specifically, has significant experience 

inspecting mines. (Tr. 78:2–79:21.) He observed the conditions in which the loader operated and 

concluded that injuries from losing control of the machine would be serious. 

(Tr. 81:12–83:9, 85:9–18.) Despite my reservations, Wade’s opinion and the size of the loader 

itself convince me that these hazards would result in fatal or serious injuries. Given the evidence 

before me, I therefore determine that the Secretary has satisfied his burden of proving that 

reasonably serious injuries were reasonably likely to occur, and has satisfied Mathies’ third and 

fourth elements. However, he has not demonstrated that reasonably serious injuries are highly 

likely. 

 

 Based on my above determinations, I therefore conclude that this violation was 

appropriately designated as S&S. In addition, Citation No. 8546029 is MODIFIED to lower the 

likelihood of injury from “highly likely” to “reasonably likely.” 

 

3. Negligence and Unwarrantable Failure Determinations

 The Secretary has designated this violation as an unwarrantable failure and characterizes 

Saiia’s negligence as high. In support of his allegations, the Secretary points to the length of time 

this condition existed, claims that Safety Manager Leemhius and Supervisor Looney failed to 

36 FMSHRC Page 1764
examine the steering column in response to Honeycutt’s repeated reports, and suggests that Saiia 

prioritized continued operations over miner safety.10 (Sec’y Br. at 18–20; Ex. R–16 at 2.) 

 As I noted, “intentional misconduct” is one of the types of conduct upon which an 

unwarrantable failure determination may be made. See discussion supra Part IV.D. The 

Secretary claims that Saiia chose to continue production rather than remove the loader from 

service for repairs because it had no other loader equipment available. Nevertheless, I do not find 

the Secretary’s argument to be persuasive. Nothing in the record convinces me that Saiia 

eschewed repairs in favor of continued production.11 Likewise, the absence of a second loader is 

insufficient to infer such a willful disregard of miner safety. Many operators may not have 

redundant tools or auxiliary machinery on hand—particularly large or expensive equipment like 

a CAT loader—but conscientiously remove such equipment from service when repairs are 

needed. I therefore decline to infer intentional misconduct simply because Saiia did not have a 

second loader available for use. 

 10 Respondents’ briefs focused little attention on these issues, tersely claiming that the 

Secretary’s negligence and unwarrantable failure allegations should be overturned because “the 

operators of the loader and the owner of the loader who drove it do not believe [it] . . . was 

unsafe or that any standard was violated.” (Resp’t Br. at 12; see also Resp’t Reply Br. at 3.) 

Although I believe Looney testified honestly regarding his opinion of the loader’s safety, a 

“good faith” belief alone does not establish a safe harbor for violative conduct. A good faith 

belief only mitigates unwarrantable failure and negligence if it is also objectively reasonable. See 

Mach Mining, LLC, 35 FMSHRC 2937, 2941–43 (Sept. 2013). 

Given my conclusion that a reasonably prudent miner would have recognized that the 

steering column defect presented dangers requiring corrective action, Looney’s “good faith” 

belief that the loader was safe is not objectively reasonable based on the facts before me. See 

discussion supra Part V.B.1. Moreover, I have accorded little weight to Schropp’s testimony that 

the loader was safe to operate because his inspection occurred more than two weeks later with no 

representative of MSHA present. See discussion supra footnote 8. I therefore determine that 

Looney and Schropp’s opinions regarding the safety of the loader do not mitigate Saiia’s 

conduct. 

11 I note that Thompson Tractor repaired the loader’s fuel system on March 19, 2010. 

(Ex. R–10; Tr. 206:2–9.) From one perspective, those repairs might support an inference that 

Saiia prioritized production over safety because it sought repairs to an item that affected the 

operation of the loader—the fuel system—while ignoring an item that only affected miner safety. 

Yet Honeycutt and Looney each credibly testified that they did not believe the loader to be 

dangerous. See discussion supra Part V.A.2. Although these opinions were not objectively 

reasonable, they do not necessarily imply intentional misconduct in failing to have the steering 

column fixed. Consequently, I do not view the repairs to the loader’s fuel system to be evidence 

that Saiia prioritized production over miner safety. 

36 FMSHRC Page 1765
 Looking to the other types of aggravated conduct, four aggravating factors support the 

Secretary’s unwarrantable failure allegation. First, the loader’s steering column appears to have 

been defective from the first day it was delivered to the Omya Alabama Plant in mid-February 

2010. Honeycutt reported the steering column as loose or broken six times in the six weeks 

between the loader’s arrival and Inspector Ogden’s inspection on March 31, 2010. (Ex. G–2.) 

Accordingly, this violative condition lasted for several weeks. Second, these continued reports 

establish that Saiia had knowledge of the condition. Third, the Secretary has satisfied his burden 

of proving this violation to be properly designated as S&S, but I have modified the citation to 

lower the likelihood of injury from “highly likely” to “reasonably likely.” See discussion supra

Part V.B.2. Finally, I have also found that the steering column moved several inches from center 

to side. See discussion supra Part V.A.1. This safety defect was therefore obvious. 

 On the other hand, three mitigating factors weigh against the Secretary’s allegations. 

First, nothing in the record suggests that Saiia was on notice that greater efforts were necessary 

for compliance. In fact, Saiia’s history of previous violations reveals no previous violations of 

section 56.14100(c). (Ex G–3.) Second, the Secretary introduced no evidence of other safety 

defects on the loader. Thus, the violation was not extensive. Third, Supervisor Looney did take 

some steps to abate the violative condition. Specifically, Looney referred the steering column to 

maintenance personnel at the mine site. Looney’s efforts to abate the violation were insufficient 

and his opinion that the loader was safe is objectively unreasonable, but he did take affirmative 

steps to address the violative condition. 

 

 Based on the determinations above, the Secretary’s unwarrantable allegation may appear 

to be a somewhat close call. Importantly, the Commission has indicated that a supervisor’s 

failure to stop a violation supports a finding of unwarrantable failure. Virginia Slate Co., 24 

FMSHRC 507, 513 (June 2002) (noting the high standard of care applicable to supervisors and 

indicating that “supervisor’s involvement in a violation should be considered in an 

unwarrantability analysis of the violation.”) (citations omitted). In this case, Looney’s role as a 

supervisor responsible for removing the loader from service supports an unwarrantable failure 

determination. He is an agent of the operator (Ex. J–1), he was aware of a defect affecting safety, 

and he allowed the condition to persist for six weeks. These dangers are precisely the type the 

Secretary had in mind when he promulgated section 56.14100(c). See Safety Standards for 

Loading, Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines, 

53 Fed. Reg. 32,496, 32,505 (Aug. 25, 1988) (“Powered haulage accidents and machinery and 

equipment accidents in metal and nonmetal mines are among the leading causes of fatalities and 

serious injuries. . . . Self-propelled mobile equipment is specifically required to be examined 

prior to use on each shift where it is to be placed in operation. This specific requirement is 

included in the standard in view of the fact that defects affecting safety become more critical 

when they occur on a piece of equipment which is mobile throughout the mine.”). Despite his 

own subjective belief, Looney failed to satisfy his obligation to remove from service a piece of 

mobile equipment with an obvious safety defect. No matter how well-intentioned his actions, his 

failure constituted a serious lack of reasonable care. 

36 FMSHRC Page 1766
 In light of Supervisor Looney’s failure to recognize the danger involved, I conclude that 

the Secretary has met his burden of proving unwarrantable failure. Similarly, I conclude that the 

Secretary has demonstrated Saiia’s level of negligence to be high. See 30 C.F.R. § 100.3(d) at 

Table X (suggesting “high negligence” where the “operator knew or should have known of the 

violative condition or practice, and there are no mitigating circumstances.”). 

C. Section 110(c) – Supervisor Frederick Looney

 Supervisor Looney stipulated that he is an agent of the operator. (Ex. J–1.) He also 

admitted he was the employee responsible for removing the loader from service, but contended 

that he did not believe that the loader was unsafe. (Tr. 132:22–133:1, 134:23–25,141:4–10, 

145:11–13, 146:9–19, 149:9–25.) Nevertheless, his good faith belief does not mitigate his 

negligence. Indeed, a knowing violation occurs when an individual knew or had reason to know 

of the violative condition, not when the individual knowingly violates the law. See Ernest 

Matney, 34 FMSHRC at 783 (citations omitted). In this case, the facts available to Looney were 

sufficient to recognize that the defect in the steering column affected safety and required repair. 

Instead, Looney allowed the loader to continue in operation for six weeks. 

 The Mine Act demands a high level of care from supervisors, and Looney’s mistaken 

belief that the loader was safe did not satisfy this important duty. Rather, his failure to recognize 

these safety hazards ultimately exposed miners to potential dangers for an extended period of 

time. I therefore determine that Looney failed to act. Moreover, his involvement proved to be a 

critical factor in my conclusion that Saiia engaged in aggravated conduct. In light of Looney’s 

status as an agent, his knowledge of the steering column’s safety defect, and his failure to 

remove the loader from service, I conclude that the Secretary has satisfied his burden of proving 

Supervisor Looney’s individual liability under section 110(c) of the Mine Act. 

 

D. Penalties

 

 1. Saiia’s Penalty 

 

 The Secretary has proposed that Saiia pay a penalty of $12,563.00 for Citation No. 

8546029. Two of the section 110(i) factors weigh strongly against assessing the Secretary’s 

proposed penalty. First, I note that MSHA’s own Assessed Violation History Report lists only 

eight violations at the Omya Alabama Plant in the previous fifteen months. None of these eight 

violations involved section 56.14100(c), nor were these violations subject to enhanced 

enforcement under section 104(d) of the Mine Act. Moreover, only one such citation merited an 

S&S designation. Thus, this modest history of previous violations mitigates against the 

Secretary’s proposed penalty. Second, nothing suggests that Saiia failed to make a good faith 

effort to achieve rapid compliance with the safety standard after Inspector Ogden issued this 

citation. In fact, it appears Saiia immediately took the loader out of service. (Tr. 135:16–24.) 

 On the other hand, I have upheld the Secretary’s S&S, unwarrantable, and negligence 

designations. Such conclusions might ordinarily support the Secretary’s proposed penalty. 

36 FMSHRC Page 1767
However, I modified Citation No. 8546029 to reduce the likelihood of injury from “highly 

likely” to “reasonably likely.” Accordingly, I am not convinced that Saiia’s conduct was so grave 

as to justify the Secretary’s proposed penalty of $12,563.00. Instead, the reduced likelihood of 

injury suggests to me that leniency is appropriate. Further, I have credited Supervisor Looney’s 

honestly held belief that the CAT loader in question was not dangerous. Although this opinion 

was not objectively reasonable, I understand why Saiia acted as it did. No matter how mistaken 

Saiia and Looney were, Respondents’ conduct was neither intentional nor reckless. Moreover, 

Looney did take some (though ultimately ineffective) steps to request repair of the steering 

column. 

 Looking at the remaining section 110(i) factors, nothing in the record suggests the 

proposed penalty is inappropriate for the size of Saiia’s business. In addition, the assessed 

penalties will not impair Saiia’s ability to remain in business. (Ex. J–1.) Yet, in weighing the 

section 110(i) criteria, I am not convinced the Secretary’s proposed penalty is appropriate. 

Significantly, Saiia’s limited history of violations, the reduced likelihood of injury, and an 

absence of intentional misconduct or recklessness each suggest that a smaller civil penalty is 

appropriate. I also note that the Secretary’s point system for penalties suggests a penalty of 

$5,645.00 for this citation as modified. See 30 C.F.R. § 100.3. However, the Secretary’s point 

system is not binding on Commission Judges, see Spartan Mining Co., 30 FMSHRC 699, 723 

(Aug. 2008), and I determine that a $5,645.00 penalty does not adequately reflect Saiia’s 

unwarrantable conduct. Considering all of the facts and circumstances set forth above, I hereby 

assess a civil penalty of $7,500.00. 

 2. Supervisor Looney’s Penalty 

 Given the facts and circumstances before me, I likewise conclude that the penalty the 

Secretary has proposed for Supervisor Looney is inappropriate. His opinion in this case was 

objectively unreasonable, and his failure to act resulted in a lengthy hazard to miners. However, 

the reduced level of gravity and absence of intentional misconduct or recklessness again suggest 

that some leniency is appropriate. In addition, the Secretary provided no evidence regarding 

Looney’s involvement in past violative conduct or that he impeded attempts to abate the 

violation in good faith after the citation had been issued. 

 Looney did not present evidence regarding either his ability to meet his financial 

obligations or his net worth, but he did testify as to his annual earnings. (Tr. 130:7.) Moreover, 

he indicated that he does not have any agreement whereby Saiia will pay the penalty assessed to 

him individually. (Tr. 130:15–18.) In the interest of maintaining Looney’s privacy, I will refrain 

from publishing details regarding his salary. However, I note that the Secretary’s proposed 

penalty would represent a somewhat significant percentage of Looney’s pay. I therefore infer 

that this penalty would affect Looney’s ability to meet his financial obligations. 

 In view of the above penalty criteria, I conclude that a smaller penalty is appropriate in 

this case. Thus, I assess a civil penalty of $1,000.00 against Looney under section 110(c). 

36 FMSHRC Page 1768
VI. ORDER

 In light of the foregoing, it is hereby ORDERED that Citation No. 8546029 is 

AFFIRMED as S&S and unwarrantable, but is MODIFIED to reduce the likelihood of injury 

from “highly likely” to “reasonably likely.” In addition, the section 110(c) charge against 

Frederick Looney is AFFIRMED. Saiia is ORDERED to PAY a civil penalty of $7,500.00 

within 40 days of the date of this decision. Likewise, Looney is ORDERED to PAY a civil 

penalty of $1,000.00 within 40 days of the date of this decision. 

 

 /s/ Alan G. Paez 

 Alan G. Paez 

 Administrative Law Judge 

Distribution: 

 

Melanie L. Paul, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, GA 30303 

John Hargrove, Esq., Bradley Arant Boult Cummings, LLP, One Federal Place, 1819 Fifth 

Avenue North, Birmingham, AL 35203 

/pjv 

 

36 FMSHRC Page 1769
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

 June 24, 2014 

 

DECISION AND ORDER

Appearances: Summer C. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 

New York, New York, for the Secretary of Labor. 

 Javier González-Montañez, Esq., Gonzalez, Machado, Roig & Sanchez 

Ramos, LLC, San Juan, Puerto Rico, for Respondent 

Before: Judge Moran 

 DECISION AND ORDER REINSTATING ROBERTO VEGA1

 A temporary reinstatement hearing was held in this matter on June 13, 2014, in San Juan, 

Puerto Rico. For the reasons which follow, the Court finds that the application was not 

frivolously brought and consequently it is ordered that Roberto Vega be reinstated to his former 

position, with all attendant benefits, effective immediately. 

Temporary Reinstatement under the Mine Act

 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 

 1

 This decision also disposes of the Respondent’s Motion for Summary Decision. See

infra at 4. 

SECRETARY OF LABOR 

 on behalf of ROBERTO VEGA, 

 Complainant, 

 

 v. 

CANTERA EL TUQUE, INC., 

 Respondent, 

: 

: 

: 

: 

: 

: 

: 

: 

:

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2014-300-DM 

SE-MD 14-19 

Mine: Cantera El Tuque 

Mine ID: 54-00483 

36 FMSHRC Page 1770
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

 Section 105(c)(2) of the Mine Act provides in relevant part that “Any miner or applicant 

for employment or representative of miners who believes that he has been discharged, interfered 

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

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

discrimination. . . . [I]f the Secretary finds that such complaint was not frivolously brought, the 

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

reinstatement of the miner pending final order on the complaint.” 

 In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

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 the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). 

In addition to Congress’ “appears to have merit” standard, the Commission and the courts have 

also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” 

Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), 

aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990) (“JWR”). Sec. obo Piper, Complainant, v. 

Kenamerican Resources, Inc. (June 2013) (Judge Andrews), 2013 WL 3865343 at *2. 

 The Commission itself “has repeatedly recognized that the ‘scope of a temporary 

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

miner's discrimination complaint is frivolously brought.’ [JWR supra] 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 on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) 

(“Chicopee Coal”). In reviewing a judge's temporary reinstatement order, the Commission has 

applied the substantial evidence standard. See, id. at 719; Sec'y on behalf of Peters v. Thunder 

Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Id. at n. 2.” Sec. obo Rodriguez v. C.R. 

Meyer and Sons Co. 2013 WL 2146640 at *5 (May 2013). 

 “Temporary Reinstatement is a preliminary proceeding, and narrow in scope. The plain 

language of the Act states that ‘if the Secretary finds that such complaint was not frivolously 

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

immediate reinstatement of the miner pending final order on the complaint.’ 30 U.S.C. § 

815(c)(2). The judge must determine whether the complaint of the miner ‘is supported 

substantial evidence and is consistent with applicable law.’ Sec'y of Labor on behalf of Peters v. 

Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Neither the judge nor the 

Commission is to resolve conflicts in testimony at this stage of the case. Chicopee Coal at 719. 

A temporary reinstatement hearing is held for the purpose of determining ‘whether the evidence 

mustered by the miners to date established that their complaints are nonfrivolous, not whether 

there is sufficient evidence of discrimination to justify permanent reinstatement.’ JWR, 920 F.2d 

at 744. “Congress intended that the benefit of the doubt should be with the employee, rather than 

the employer, because the employer stands to suffer a lesser loss in the event of an erroneous 

decision since he retains the services of the employee until a final decision on the merits is 

rendered.” Sec'y of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC 

36 FMSHRC Page 1771
233, 237 (ALJ) (Feb. 2000).” Sec. obo Piper, Complainant, v. Kenamerican Resources, Inc. 

(June 2013) (Judge Andrews), 2013 WL 3865343 at *2. 

Findings of Fact and Conclusions of Law 

 At the hearing, the Complainant, Roberto Vega, testified. Mr. Vega stated, credibly, 

in the Court’s estimation, that he was employed by the Respondent, Cantera El Tuque, from 

December 1, 2012 until April 17, 2014, as a supervisor. In that capacity, he reported to Mr. 

Enrique Golderos, the owner of the Respondent Mine. Tr. 9-10. Mr. Vega stated that he spoke 

with MSHA Inspector Villahermosa during February 2014 and that the conversation included 

Mr. Vega’s remarks to the inspector about certain unsafe conditions at the mine. Tr. 18. 

Citations were issued by the Inspector during that time and presented to Mr. Vega. Mr. Vega 

then informed Mr. Golderos about the citations that were issued. Mr. Vega affirmed during his 

testimony that he identified safety hazards at the mine. These included fugitive dust, equipment 

with defects, such as a non-functioning emergency brake and back-up alarm on a loader, among 

other issues. Mr. Vega stated that he identified these safety issues to the inspector and as a 

consequence, citations were issued to the mine. Tr. 19-21. 

Subsequently, the same Inspector returned to the mine during March 2014 to follow-up 

on the citations he had previously issued. Tr. 25. The loader which had been cited during the 

February inspection was still unrepaired and the Inspector issued an Order, barring future use of 

it until the violative condition was abated. Id. During the March follow-up inspection, Mr. Vega 

spoke with the Inspector about other safety concerns he had about the mine. The Court finds 

that these safety concerns were communicated to the MSHA Inspector and that those concerns 

were not negligible. 

Upon questioning by the Court, Mr. Vega testified that he had discussions with Mr. 

Golderos about these, and other identified safety concerns, on several occasions. Tr. 26. These 

conversations occurred after the citations had been issued and Mr. Vega stated that Mr. Golderos 

never took any action regarding those concerns. Tr. 27. Beyond this, Mr. Vega asserted that, in 

conversation with Mr. Golderos, he was advised that he needed to “learn” how to speak with 

MSHA inspectors. In the context presented, Mr. Vega stated, he construed this to mean that he 

was to lie to the inspectors. 

During cross-examination and repeatedly during the proceeding, Counsel for the 

Respondent attempted to interject testimony regarding its claim that Mr. Vega was actually fired 

due to economic reasons at the mine. See, for e.g. Tr. at 37. 

The Court found that the government established, through the testimony of Mr. Vega, its 

prima facie case that the claim was not frivolously brought. This was based upon the Court’s 

conclusion from that testimony, finding that the witness was credible, that he made safety 

complaints, both to the MSHA Inspector and to the owner, and that, in close proximity in time, 

he was fired from his job with the mine. The Court added that it was not aware of any 

Commission level decision in support of considering the Respondent’s claim that Mr. Vega was 

discharged for economic reasons. Tr. 45-47. In fact, case law points to the opposite conclusion. 

As noted by the Secretary in its Motion in Limine, the decisions regarding Secretary of Labor on 

36 FMSHRC Page 1772
behalf of Joseph M. Ondreako v. Kennecott Utah Copper Corp., 2003 WL 23416466 (Oct. 9, 

2003), aff’d 25 FMSHRC 585, make this conclusion clear. 

As the Court noted, “So what I have here is Mr. Vega's testimony, which I deem to be 

credible upon observing him, that he is an employee of this mine, or was; that he made safety 

complaints to an MSHA inspector, which I found to have been credible testimony; and then 

that adverse action followed within a reasonable period of time following those complaints.” Tr. 

56. 

In the face of the Respondent’s contention that its defense “has to do with, that on prior 

occasions, both the witness as well other employees, brought safety issues before the respondent 

and the consequence was never employee termination. And at the end of the day this court will 

have the opportunity to see, in this proceeding that's being held, that there were other motivations 

that have nothing to do with safety, which were the ones that moved this employee to request this 

remedy,” the Court tried to explain that such weighing of competing versions for the employee’s 

termination is outside the scope of a temporary reinstatement proceeding. Tr. 60-61. 

The Respondent, in defense, called one witness, Ms. Magda Marie Rivera. Ms. Rivera, 

declared to be an employee of the Respondent, stated that the mine had approximately 25 

employees in early 2013 but today has only 14 employees. Tr. 70. Again, the Respondent 

attempted to show, this time through the testimony of Ms. Rivera, the “real reasons, the true 

reasons, why [Mr. Vega] was fired,” and again the Court advised that consideration of such 

testimony would necessarily involve a weighing of competing stories, and that this would be 

outside of the proper scope of the temporary reinstatement proceeding. Tr. 73-74. 

At the conclusion of the testimony, the Respondent asked that the Court take “judicial 

notice” that, under Puerto Rico’s labor law, during layoffs an employer must terminate the 

employee with the least seniority. The Court advised that it did not believe that such 

considerations were material to the proceeding but that the parties could submit cases in support 

of their respective positions on that point, if such case law existed. The Respondent has not 

identified such case law to support its contention. 

On June 16, 2014, the Secretary, via email, noted the Court’s “request at the close of 

hearing on June 13, 2014, to identify any case law supporting the proposition that state law could 

affect a temporary reinstatement proceeding.” The Secretary advised that it “found no case law 

supporting such a proposition. Furthermore, Section 506 of the MSH Act states that the MSH 

Act preempts state law where it conflicts with the ‘[MSH] Act or with any order issued or any 

mandatory health or safety standard. 30 USC 955.’” Based upon that response, the Secretary 

asserted that “the Puerto Rico statutes that Respondent’s counsel alluded to during the hearing 

are not relevant to this temporary reinstatement proceeding.” 

Respondent’s Motion for Summary Decision 

The Secretary noted that the Respondent filed a summary judgment motion at the time it 

responded to the Secretary’s Motion in Limine. The Respondent’s “Request for Summary 

Judgement” [sic], asserts that “[t]he decision to separate Mr. Vega from his work duties 

36 FMSHRC Page 1773
responded to an adverse financial condition of Respondent, a fact that has not been disputed by 

Applicant.” Motion at 1. The Motion goes on to assert that Mr. Vega was one of a number of 

employees that were laid off as a result of the Respondent Mine’s “adverse financial condition,” 

and that he was so informed by the mine’s President, Mr. Golderos, that the mine’s economic 

condition was the basis for the termination. Id. at 2.2 

As that motion was filed just two days before the temporary reinstatement proceeding, 

the Secretary had not filed a response at the time of the hearing. The Secretary elected to 

respond to the Respondent’s motion orally, at the close of the hearing. It contended that the 

Respondent’s motion was premature as it goes to the merits of the underlying discrimination 

proceeding and therefore is outside of the “frivolously brought” issue to be decided at this 

juncture. Further, the Secretary contended that, even assuming for the sake of argument that the 

motivation for Mr. Vega’s termination could be raised, there are factual disputes involved, and 

therefore that summary judgment is not appropriate. Tr. 83-84. The Court agrees with the 

Secretary’s arguments. 

As referenced earlier in this decision, the scope of a temporary reinstatement proceeding 

is very limited. Considering that the basis advanced in the Request for summary judgment goes 

beyond the scope of this proceeding, as it would entail a weighing of different narratives as to the 

basis for the Complainant’s termination, summary decision is not appropriate. Accordingly, the 

Request is DENIED. 

Conclusion

The Court has noted that the testimony on the subject of protected activity, and whether 

adverse action was motivated in any part by such activity, came solely from the Complainant, 

Mr. Vega. Against this was the Respondent’s attempt to show that the miner’s discharge was 

due to economic conditions at the mine. However, the fundamental problem with that approach 

is that the temporary reinstatement application is not the proceeding for the resolution of 

such competing narratives. Rather, the Court must focus upon whether there is credible 

substantial evidence presented to show that protected activity occurred, that adverse action 

resulted, and that there was evidence of a nexus between those events. Here, as noted, the Court 

finds that: the record at the application proceeding provided substantial evidence of the 

Complainant’s engaging in protected activity, voicing his concerns over several safety matters; 

that management was made aware of these concerns; and that an adverse action, in the form of 

termination, occurred within a time frame thereafter which was sufficiently close in time to 

establish, on this record, and within the context of temporary reinstatement, that the application 

was not frivolously brought. 

While the Court has found that Mr. Vega’s complaint of discrimination was not 

frivolously brought, it is fully recognized that the Commission has noted that the period of 

reinstatement may be tolled in some circumstances. A layoff for economic reasons may provide 

such a basis for tolling, but that is a very fact-specific inquiry. See, e.g., Sec. obo Gatlin v. 

 2

 Respondent submitted a “Memorandum of Law in Support of Summary Judgement” 

[sic] on June 19, 2014. Because the Court denies the Respondent’s Motion, there is no need to 

await a Response from the Secretary. 

36 FMSHRC Page 1774
Kenamerican Resources, 31 FMSHRC 1050, 2009 WL 3412973 (Oct. 2009), Sec. obo Ratliff v. 

Cobra Natural Resources, 35 FMSHRC 394, 2013 WL 865606 (Feb. 2013). The Respondent 

may initiate this process by filing a motion to toll the economic reinstatement, which motion 

must fully set forth the basis for that relief. Of course, the motion must provide documentation 

in support of the claim for tolling. The Secretary will need to timely respond to the motion and 

then seek discovery in order to make its own evaluation of the bona fides of the Respondent’s 

claim for relief. As the Court explained in a conference call with the parties on June 24, 2014, 

various scenarios may ensue upon the completion of the discovery and the evaluation of that 

information by the Secretary. It is possible, for example, that the Secretary may concede that 

tolling is appropriate or that it is not justified. On the other hand, it may be that the Respondent 

may step back from its motion and withdraw its claim that tolling should be applied. It is also 

possible that a hearing may be required to resolve factual disputes about the Respondent’s 

employment situation and the appropriateness of Mr. Vega’s inclusion in that layoff, given the 

finding that his claim was not frivolously brought. 

Regardless of the outcome of any potential motion to toll the period of economic 

reinstatement, the Secretary continues to have the obligation, following the issuance of this 

Decision and Order, to complete its investigation of the underlying discrimination complaint as 

soon as possible. Section 105(c)(3) of the Mine Act requires the Secretary to notify the 

complainant of whether it intends to file a discrimination complaint on the complainant’s behalf 

within 90 days of receiving the miner’s initial complaint. If the parties settle the underlying 

discrimination case, counsel for the Secretary is directed to promptly notify the Court. Similarly, 

prompt notification to the Court is required if the Secretary determines that the Respondent did 

not violate section 105(c) of the Mine Act. 

 ORDER

 On the basis of the foregoing, the Court finds that the Secretary presented sufficient 

evidence at the hearing in Puerto Rico to establish that this discrimination complaint was not 

frivolously brought. Accordingly, it is ORDERED that the Respondent immediately reinstate 

the Complainant, Roberto Vega, as of the date of this ORDER, to his former position, or its 

equivalence, at the same rate of pay and benefits that he was receiving at the time of his 

termination. The Secretary is directed to provide a status report of its discrimination 

investigation within 30 days of this decision. The Court retains jurisdiction over this temporary 

reinstatement proceeding. 

 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

36 FMSHRC Page 1775
Distribution: 

Summer C. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick St., 

Room 983, New York, NY 10014 

Javier Gonzalez, Esq., Citibank Tower, Suite 601, 252 Ponce de Leon Avenue, San Juan, Puerto 

Rico 00918 

Enrique Golderos, President, Cantera El Tuque, Inc., P.O. Box 801354, Coto Laurel, PR 00780 

36 FMSHRC Page 1776
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

 1331 Pennsylvania Avenue NW, Suite 520N 

 Washington, D.C. 20004 

June 12, 2014 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. SE 2013-301 

 Petitioner : A.C. No. 01-00851-315187-01 

 : 

 : Docket No. SE 2013-352 

 v. : A.C. No. 01-00851-317727 

 : 

 : Docket No. SE 2013-368 

 : A.C. No. 01-00851-319550 

OAK GROVE RESOURCES, LLC, : 

 Respondent : Docket No. SE 2013-399 

 : A.C. No. 01-00851-320606-01 

 : 

 : Mine: Oak Grove Mine 

ORDER REQUIRING SECRETARY’S PRE-HEARING STATEMENT

Before: Judge Feldman 

These proceedings require a determination of the evidentiary criteria that must be 

demonstrated to support the imposition of enhanced civil penalties provided in section 110(b)(2) 

of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and 

New Emergency Response Act of 2006 (“Act” or “New Miner Act”), for an alleged repeated 

flagrant violation. 30 U.S.C. § 820(b)(2). Section 110(b)(2), which became effective on 

August 17, 2006, following the Sago and Darby Mine disasters, increases the maximum civil 

penalty for extremely hazardous violations deemed “flagrant.” 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). 

36 FMSHRC Page 1777
A primary subject in these matters is 104(d)(2) Order No. 8520664 in Docket No. 

SE 2013-368, issued on October 3, 2012.1

 The order alleges a repeated flagrant violation under 

section 110(b)(2) of the Act based on an alleged violation of the mandatory safety standard in 

section 75.400 of the Secretary’s regulations that is attributable to high negligence.2

 30 C.F.R. 

§ 75.400. Order No. 8520664 states:

Combustible material in the form of float coal dust and dry hard 

packed coal fines were allowed to accumulate on the roof, ribs, 

footwall, and belt structure of the Main North 3 belt entry. The 

hard packed coal fines were in contact with moving roller[s] on the 

belt line in multiple locations along the belt entry. The float coal 

dust existed on the roof, ribs, footwall, and belt structure from the 

Main North 3 Tail Pieces extending outby to crosscut 27. This is 

an approximate distance of 2100 feet. Due to the extensive amount 

of accumulations and that this belt is examined every shift this 

1

 Docket Nos. SE 2013-301, SE 2013-352 and SE 2013-399 have been consolidated with 

Docket No. SE 2013-368 for judicial efficiency and because included therein is a citation that the 

Secretary relies on as a predicate for the alleged flagrant violation in Order No. 8520664. 

2

 Section 75.400 provides: 

Coal dust, including float coal dust deposited on rockdusted 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. 

constitutes more than ordinary negligence and is an unwarrantable 

failure to comply with a mandatory health and safety standard. 

Standard 75.400 was cited 92 times in two years at mine 0100851 

(91 to the operator, 1 to a contractor). This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Section 75.400, which prohibits combustible coal dust accumulations, is the most 

frequently cited mandatory standard in underground coal mines. For example, citations 

concerning section 75.400 violations constituted 10.47 percent of all citations issued in 2013, 

and currently constitute 10.61 percent of all citations issued in 2014. MSHA, Most Frequently 

Cited Standards, www.msha.gov/stats/top20viols/top20viols.asp (accessed June 12, 2014). 

36 FMSHRC Page 1778
Background

Section 8(b) of the New Miner Act required the Secretary to “promulgate final 

regulations with respect to penalties” to codify the new enhanced penalty structure. Pub. L. 

109-236, § 8(b), 120 Stat. 501 (2006). To implement special assessments for flagrant violations, 

MSHA issued notices of proposed rulemaking for section 100.5(e) in the Secretary's Part 100 

Criteria and Procedures for Proposed Assessment of Civil Penalties. 30 C.F.R. §100.5(e), 

71 Fed. Reg. 53054 (Sept. 2006); 71 Fed. Reg. 62572 (Oct. 2006). The notice-and-comment 

provisions of the APA require the Secretary to provide “[an adequate] description of the subjects 

and issues involved” to support a flagrant violation. 5 U.S.C. § 553(b)(3). On March 22, 2007, 

MSHA issued a final rule regarding its procedures for proposing enhanced civil penalties under 

the New Miner Act. 30 C.F.R. §100.5(e). However, the final provisions of section 100.5(e) 

merely repeat the statutory language in section 110(b)(2), without providing adequate notice 

with respect the evidentiary criteria necessary to support a flagrant designation . 3 72 Fed. Reg. 

at 13622. 

The Commission has previously had the question of the required elements for a repeated 

flagrant violation before it on several occasions based on requests for review of interlocutory 

decisions of Commission Judges who had addressed this issue. Conshor Mining, LLC, 

34 FMSHRC 349 (Feb. 2012) (granting interlocutory review); Wolf Run Mining Company, 

35 FMSHRC 536 (Mar. 2013) (remanding for reconsideration of whether a violation was 

properly designated as flagrant). On each occasion, the Secretary removed the subject flagrant 

violation designation, thus precluding a final Commission ruling on this question. Conshor, 

34 FMSHRC 571 (Mar. 2012) (vacating the order granting interlocutory review); Wolf Run, 

__ FMSHRC __ (Apr. 14, 2014) (ALJ) (approving settlement). However, in its remand order 

in Wolf Run, prior to the withdrawal of the relevant flagrant designation, the Commission 

concluded that the plain language of section 110(b)(2) supports that past violative conduct 

may be considered in determining whether to cite a condition as a repeated flagrant violation. 

35 FMSHRC at 541, citing 30 U.S.C. § 820(b)(2). 

3

 Section 100.5(e), as promulgated, provides: 

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.” 

30 C.F.R. §100.5(e). 

36 FMSHRC Page 1779
However, in Wolf Run, the Commission did not address: whether such previous violations 

must be unwarrantable; whether the prior violations must have violated the same mandatory 

standard as the condition alleged to be flagrant; and whether there is a specified time period for 

the occurrence of such previous violations. The Commission had no basis for doing so as the 

Secretary did not clearly articulate in his opening brief, or during oral argument, the relevant 

parameters concerning prior conduct. The Secretary avers that any parameters for predicates that 

he considers for a repeated flagrant violation are merely guidelines for enforcement personnel. 

Sec’y Resp. at 9. As such, the guidelines are not based on the Secretary’s statutory interpretation 

and are beyond the scope of this proceeding. 4 

The Commission also has never addressed the requisite degree of gravity necessary for a 

flagrant designation. The degree of gravity is determined by the seriousness of the violation. 

Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citations omitted). In this 

regard, the Secretary acknowledges that “gravity is essentially a function of (1) the potential for 

injury and (2) the likely nature of such injury.” Sec’y Resp. at 3. 

Even if the Secretary ultimately prevails in this matter with respect to the issues of the 

fact of the violation and the significant and substantial (“S&S”) and unwarrantable designations 

in Order No. 8520664, a hearing cannot proceed without determining the proper evidentiary 

requirements for demonstrating a repeated flagrant violation under the statutory provisions of 

section 110(b)(2). Consequently, on March 19, 2014, an Order Scheduling Briefing (“Order”) 

was issued requesting the Secretary to address a number of substantive issues concerning the 

criteria necessary to support a repeated flagrant violation. 36 FMSHRC 815 (Mar. 19, 2014) 

(ALJ).5

 The Secretary’s response was filed on April 22, 2014. Oak Grove’s reply to the 

Secretary’s response was filed on May 8, 2014.6 

4

 Guidelines, such as those contained in Procedure Instruction Letters (“PILs”), that 

provide guidance to enforcement personnel are not mandatory standards. Such PILs do not 

establish a binding norm and therefore are not subject to the APA. Consequently, given the 

advisory nature of the Secretary’s parameters for charging that a flagrant violation is repeated in 

nature, a rulemaking proceeding is not required. 5 U.S.C. § 553(b)(3)(A); see also, Nat’l Mining 

Ass’n, 589 F.3d 1368, 1371 (11th Cir. 2009). 

5

 Included among the issues the Secretary was directed to address was whether a noticeand-comment rulemaking was necessary if the Secretary was proposing a binding norm with 

respect to the parameters for predicates for repeated flagrant violations. 38 FMSHRC at 820. 

The Secretary has not proposed a binding norm with respect to whether predicate violations must 

have violated the same standard as that alleged to be flagrant, and whether there is a specific 

time period for, or frequency of, such prior violations. In the absence of a binding norm, a 

rulemaking is not required. Accordingly, this Order deals solely with a Chevron analysis of 

whether the Secretary’s interpretation of section 110(b)(2) is reasonable. See page 5-6, infra. 

6

 Oak Grove’s reply has been considered, although not specifically referenced in this 

Order. The focus of this Order is the reasonableness of the Secretary’s interpretation and 

application of the evidentiary burden that must be met to support a repeated flagrant designation 

under the provisions of section 110(b)(2). 

36 FMSHRC Page 1780
In response to the March 19, 2014, Order, the Secretary agreed that “both reckless and 

repeated flagrant designations require violations that substantially and proximately caused, or 

reasonably could have been expected to cause, death or serious bodily injury.” Sec’y Resp. at 6. 

In other words, the Secretary acknowledges that a violation which does not otherwise satisfy 

the gravity requirements in section 110(b)(2) cannot be elevated to a flagrant violation solely 

based on prior predicate violations. With respect to the requisite degree of gravity, the Secretary 

has departed from his prior position that a flagrant violation requires a likelihood of injury of at 

least a permanently disabling nature,7 now arguing that most lost workday injuries are sufficient 

to support a flagrant violation. Sec’y Resp. at 3. 

 With respect to distinguishing the terms “flagrant” and “S&S,” obviously, all flagrant 

violations are S&S, however, not all S&S violations are flagrant.8 The Secretary fails to 

adequately distinguish violations that are only S&S from S&S violations that are properly 

designated as flagrant. In so doing, the Secretary seeks to greatly expand the scope of the 

flagrant provisions of section 110(b)(2) beyond that contemplated by Congress. Consequently, 

as discussed below, the Secretary’s interpretation of the section 110(b)(2) criteria for a flagrant 

violation is unreasonable. 

I. Chevron Framework

 A definitive articulation of the elements necessary for a repeated flagrant violation that 

is consistent with the statutory language and the legislative intent is essential for implementing 

the flagrant provisions of section 110(b)(2). The Commission has traditionally established the 

parameters for the Secretary’s burden of proof with respect to charges brought under the Act. 

Berwind Natural Resources Corp., 21 FMSHRC 1284, 1317 (Dec. 1999) (noting longstanding 

caselaw reflecting the Commission’s authority to interpret the Mine Act and adopt specific tests 

or standards for adjudication, such as the evidentiary requirements for S&S designations and for 

personal liability) (citations omitted). The vague and inconsistent criteria proffered by the 

Secretary for demonstrating a repeated flagrant violation has created a void that must be filled by 

the Commission. As the factors considered by the Secretary with respect to timeframe, number 

of previous violations, and whether such previous violations must cite the same mandatory 

standard, are merely guidelines, the focus shifts to whether the Secretary’s interpretation of the 

statutory gravity criteria for a flagrant violation is both reasonable and consistent with the 

relevant legislative history. 

 7

 The Secretary’s initial guidelines for repeated flagrant violations required that the cited 

condition pose a potential injury or illness of at least a permanently disabling nature. Conshor, 

33 FMSHRC 2917, 2920 (Nov. 28, 2011) (ALJ) (citing PIL Nos. I06-III-04, I08-III-02). The 

Secretary has also departed from his initial guidelines requiring at least two prior unwarrantable 

failure violations of the same mandatory standard that were cited within the fifteen month period 

preceding the issuance of the alleged flagrant violation. Id. 

8

 Judge Paez has similarly noted that the ‘significantly and substantially contribute to a 

hazard’ language in section 104(d)(1), that provides a basis for an S&S designation, is notably 

different from the provisions of section 110(b)(2) that provide a basis for the gravity element of a 

flagrant designation. Stillhouse Mining, LLC, 33 FMSHRC 778, 800 (March 28, 2011) (ALJ). 

36 FMSHRC Page 1781
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 U.S. 

837, 842 (1984). If a statute is clear and unambiguous, effect must be given to its language. Id. 

at 842-43. Deference to an agency's interpretation of the statute may not be applied “to alter the 

clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 

(citations omitted). Traditional tools of construction, including examination of a statute's text 

and legislative history, may be employed to determine whether “Congress had an intention on 

the precise question at issue,” which must be given effect. Coal Employment Project v. Dole, 

889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations omitted). The examination to determine whether 

there is a clear Congressional intent is commonly referred to as a “Chevron I” analysis. Id.; see 

Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996); Keystone Coal Mining Corp., 16 

FMSHRC 6, 13 (Jan. 1994). 

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 U.S. at 843-44; Thunder Basin, 

18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded to “an agency's 

interpretation of the statute it is charged with administering when that interpretation is 

reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). 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. See Joy Technologies, Inc. v. 

Sec'y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997); Thunder 

Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995). 

A. Chevron I - Congress has directly addressed that flagrant violations can only be reserved 

for the most blatant and egregious violations 

The operative statutory definition of “flagrant” provided by Congress is: 

[T]he 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). 

Placing the statutory definition in the context of the legislative history, although 

enhancement of safety is a fundamental concern, it is clear that the intent of the New Miner Act, 

which was enacted in the aftermath of the Sago and Darby Mine disasters, was to address, and 

hopefully prevent, violations that could proximately cause future tragedies. The Senate Report 

that accompanied the New Miner Act stated: 

 The year 2006 began with the tragic loss of 12 miners at the 

 Sago Mine in West Virginia, followed closely by the deaths of 

36 FMSHRC Page 1782
two miners at the Alma Mine, also in West Virginia; and some 

4 months later by the deaths of 5 miners at the Darby Mine in 

Harlan County, Kentucky. The death toll in the first 5 months of 

the year was nearly 50 percent higher than the entire previous 

year. Additionally, the rise in coal production in the last few years 

raises the committee's concerns that there is the potential for a 

return to higher numbers of accidents and fatalities. Improvements 

in safety come about because of a continued re-examination and 

revision of safety and regulatory practices in light of experience. 

These tragedies serve as a somber reminder that even that which 

has been done well can always be done better. 

Committee on Health, Education, Labor, and Pensions, S. Rep. No. 109-365, Mine Improvement 

and New Emergency Response Act of 2006, at 2 (Dec. 6, 2006). 

In construing statutory language, it is fundamental that: 

A statute is passed as a whole and not in parts or sections and is 

animated by one general purpose and intent. Consequently, each 

part or section should be construed in connection with every other 

part or section to produce a harmonious whole. 

2A Sutherland Statutory Construction § 46:5 (7th ed.). In this regard, the “Act’s overall 

enforcement scheme . . . provides for the use of increasingly severe sanctions for increasingly 

serious violations or operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 

(Apr. 1981). Thus, the Act provides increasingly severe sanctions: for S&S violations cited 

under section 104(a); for violations attributable to unwarrantable failures under section 104(d) 

which subject operators to a maximum penalty of $70,000.00; and for flagrant violations under 

section 110(b)(2) which subject operators to a maximum penalty of $220,00.00. 

The fact that Congress intended that it is only the most blatant and egregious violations 

that can be cited under section 110(b)(2) is clear from the language of the statute that 

characterizes the subject violation as “flagrant.” A flagrant act is defined as conduct that is 

“[c]onspicuously bad, offensive, or reprehensible.” The American Heritage Dictionary 667 

(4th ed. 2009). The American Heritage Dictionary includes the following discussion of relevant 

synonyms: 

flagrant, glaring, gross, egregious, rank: [t]hese adjectives refer to 

what is conspicuously bad or offensive. Flagrant applies to what is 

so offensive that it cannot escape notice: flagrant disregard for the 

law. What is glaring is blatantly and painfully manifest: a glaring 

error; glaring contradictions. Gross suggests a magnitude of 

offense or failing that cannot be condoned or forgiven: gross 

ineptitude; gross injustice. What is egregious is outrageously bad: 

36 FMSHRC Page 1783
an egregious lie. Rank implies that the term it qualifies is as 

indicated to an extreme, violent, or gross degree: rank stupidity; 

rank treachery.

Id. (emphasis in original). As discussed below, it is the conspicuously bad, offensive, or 

reprehensible nature of the cited violation with respect to its significant risk of causing death 

or serious bodily injury that warrants designating the violation as flagrant. However, although 

the plain language of section 110(b)(2) requires that the violation be egregious, the specific 

threshold criteria to warrant a designation of a flagrant violation requires interpretation of the 

statutory provisions. 

B. Chevron II - The Secretary’s interpretation of the gravity requirements in section 

110(b)(2) with respect to the causation, likelihood, and severity of injury, is unreasonable

In Wolf Run, the Secretary alluded to any “fail[ure] to make reasonable efforts to 

eliminate at least one previous violation prior to failing to make reasonable efforts to eliminate 

the violation alleged to be flagrant” as an adequate predicate for a repeated flagrant designation. 

35 FMSHRC at 539 n. 5 (citing S. Opening Br. at 17). In his response to the March 19, 2014, 

Order, the Secretary now asserts that in order to demonstrate a repeated flagrant violation, it 

must be demonstrated that the operator: 

 (1) Knew of one or more [ . . . ] predicate violations, (2) failed to 

make reasonable efforts to eliminate the prior violation(s) known 

to the operator, and (3) that one or more of these [prior] violations 

reasonably could have been expected to cause death or serious 

bodily injury. 

Sec’y Resp. at 10. Thus, the Secretary now asserts that any predicate violation relied upon 

to support a repeated flagrant violation must be a known violation that satisfies the “threshold 

gravity and negligence required by section 110(b)(2).” Id. at 11. As the Commission has 

determined that the previous violation history is a relevant consideration, and the Secretary has 

acknowledged that the requisite degree of gravity for reckless and repeated flagrant violations is 

the same, the only remaining issue for resolution is the degree of gravity required to satisfy a 

repeated flagrant violation. See pages 3-4, supra.

1. The March 19, 2014 Order

As a general matter, the Order required the Secretary to compare the degree of gravity 

required for a flagrant designation under section 110(b)(2) with the degree of gravity required 

for the statutory term “significant and substantial” contained in section 104(d)(1) of the Act, 

36 FMSHRC Page 1784
the criteria for which has been articulated in Mathies and its progeny.9

 36 FMSHRC at 817-18, 

citing Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). In this regard, the Order directed the 

Secretary to consider the distinction, if any, between the Commission’s determination that an 

S&S finding “requires that the hazard contributed to [by the violation] will result in an event in 

which there is an injury,” with the language of section 110(b)(2) that the violation itself must be 

the actual or expected proximate cause of death or serious bodily injury. Id. at 818, citing U.S. 

Steel Mining, 6 FMSHRC 1834, 1836 (Aug. 1984) (citing 3 FMSHRC at 3-4) (emphasis added); 

see also Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (holding that the third 

element of Mathies only requires the Secretary to prove a reasonable likelihood that the hazard 

contributed to by the violation will cause injury, not that the violation itself will cause injury). 

In briefing this matter, the Secretary was also directed to be mindful of the fact that an S&S 

analysis is based on a variety of changing conditions normally encountered during continued 

mining operations in the presence of an unabated hazard. 36 FMSHRC at 818, citing U.S. Steel 

Mining, 7 FMSHRC 1125, 1130 (Aug. 1985) (citing 6 FMSHRC 1573, 1574 (July 1984)). 

2. The Secretary’s Proffered Interpretation in Response

As previously noted, the Secretary has acknowledged that gravity is a function of 

the likelihood and seriousness of an injury. Sec’y Resp. at 3. With respect to the potential 

likelihood of injury, the Secretary argues there is essentially no distinction between routine S&S 

and flagrant gravity requirements. In this regard, the Secretary states “there is no material 

distinction between the ‘reasonably likely to result’ inquiry [under the third element of Mathies] 

and the ‘reasonably could have been expected to cause’ inquiry under section 110(b)(2).” Id.

With respect to causation as it relates to the likelihood of injury, the Secretary 

acknowledges that a prerequisite for a flagrant violation is that “the violation itself” must be 

reasonably expected to cause death or serious injury. Sec’y Resp. at 4 (emphasis in original). 

The Secretary distinguishes this from an S&S violation, which only requires that “the hazard 

contributed to by the violation” must be reasonably likely to contribute to an event that causes 

injury of a reasonably serious nature. Id. (emphasis in original). However, the Secretary 

maintains that this distinction is not substantive, and only shifts the burden of proof. Id. Rather, 

the Secretary argues that, “[n]evertheless, this distinction does not support a conclusion that 

[flagrant] violations require greater gravity than [S&S] violations.” Id. 

9

 In order to establish that a violation is properly designated as 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 [by the violation] will result in an injury; and 

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

reasonably serious nature. 

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 

36 FMSHRC Page 1785
With respect to the severity of the potential injury, the Secretary argues that “most 

injuries that result in lost work days/restricted duty” can be properly designated as flagrant 

violations. Sec’y Resp. at 3. Obviously, all injuries involving serious bodily injury are injuries 

of a reasonably serious nature. However, as discussed below, the question is whether lost 

workday injuries that do not result in any residual debilitating and/or permanent impairment 

constitute serious bodily injuries as contemplated by section 110(b)(2). 

The Secretary argues that his litigating position in administering the Mine Act before the 

Commission is entitled to full Chevron deference. Sec’y Resp. at 14. However, the Secretary’s 

litigating position is only entitled to Chevron deference if his trial strategy is based on a 

reasonable interpretation and application of the subject statutory provisions.10 In this matter, 

an analysis is required to determine whether deference is owed to the Secretary’s proffered 

interpretation with respect to his comparison of the degree of gravity required for a violation 

that is only S&S in nature and a violation that is properly designated as both S&S and flagrant. 

In determining whether the Secretary’s statutory interpretation is reasonable, it is essential to 

distinguish the terms ‘proximate cause,’ ‘reasonably be expected to cause,’ and ‘serious bodily 

injury’ as they relate to flagrant violations, from the terms ‘contributing cause,’ ‘reasonable 

likelihood,’ and ‘injury of a reasonably serious nature,’ that are hallmarks of an S&S 

designation. 

3. Disposition

a. Proximate Cause vs. Contributing Cause

In addressing the meaning of proximate cause in section 110(b)(2), it is necessary to 

differentiate a proximate cause from a contributing cause. A flagrant designation requires 

the subject violation to be the substantial and proximate cause of a death or serious bodily injury 

that has occurred, or could be reasonably expected to occur. A proximate cause is “a cause that 

directly produces an event and without which the event would not have occurred.” Black’s Law 

Dictionary 213 (7th ed. 1999). Synonyms include “direct cause,” “primary cause” and “legal 

10 The Secretary’s reliance on Excel and Simola for the proposition that the Secretary’s 

litigation position is entitled to Chevron deference is misplaced. Secretary of Labor v. Excel 

Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); Bill Simola, employed by United Taconite, LLC, 34 

FMSHRC 539, 543 (Mar. 2012). In both Excel and Simola, the Secretary’s legislative stance 

was adopted on appeal because it was based on his reasonable interpretation of statutory 

provisions that was consistent with the legislative history and goals of the Mine Act. In Excel, 

the Court found that the Secretary’s interpretation of the appropriate methodology for calculating 

average dust concentrations was reasonable in view of the text of the relevant provision, the role 

of the provision in the overall enforcement of the Act, and the “longstanding duration” of the 

interpretation. 334 F.3d at 7-11. Similarly, in Simola, the Commission concluded that the 

Secretary’s proffered interpretation with respect to the applicability of the personal liability 

provisions of Section 110(c) of the Act to agents of limited liability corporations was “consistent 

with the text of section 110(c)” and “fully consistent with the legislative history.” 34 FMSHRC 

at 550. 

36 FMSHRC Page 1786
cause.” Id. The magnitude of the seriousness of a flagrant violation, given its close causal 

connection to death or serious bodily harm, or the reasonable expectation thereof, differentiates 

a flagrant violation from an S&S violation. 

A contributing cause is “a factor that – though not the primary cause – plays a part in 

producing a result.” Id. at 212. An S&S finding “requires that the hazard contributed to [by 

the violation] will result in an event in which there is an injury.” U.S. Steel Mining, 6 FMSHRC 

at 1836. Thus, unlike a flagrant violation which is a primary cause of the potential injury itself, 

an S&S violation is a contributing cause to the existence of a hazard that may ultimately result 

in injury. This is a significant substantive distinction, rather than only a manifestation of the 

required burden of proof as asserted by the Secretary. Sec’y Resp. at 4. This substantive 

distinction, which the Secretary denies, renders the Secretary’s interpretation of the gravity 

requirements in section 110(b)(2) unreasonable. 

b. Reasonably Expected vs. Reasonable Likelihood

The term “reasonably,” as in “reasonably expected” for a flagrant designation, or 

“reasonably likely” for an S&S designation, in context, means “rationally,” “adequately,” or 

“sufficiently.” Roget’s 21st Century Thesaurus (3rd ed. 2009), available at http://thesaurus.com. 

The comparison between the terms “expected” and “likely” is a matter of degree. Synonyms 

for “expected” include “certain,” “about to happen,” and “impending.” Id. Synonyms for 

“likelihood” include “chance,” “possibility,” “prospect,” “tendency,” and “trend.” Id. In other 

words, an expected event is much more certain to occur than a likely event. It is clear that the 

probability of injury is far greater when miners are exposed to flagrant violations as compared 

to violations that are only S&S, particularly in view of the proximate causal role played by such 

egregious violations. Thus, the Secretary’s contention that there is no material difference 

between the “reasonably likely to result” standard under Mathies and the “reasonably could have 

been expected to cause” standard under section 110(b)(2) is unpersuasive. See, Sec’y Resp. at 3. 

c. Bodily Injury vs. Injury of a Reasonably Serious Nature

Although the Secretary now argues that a potential injury associated with a flagrant 

violation need only result in lost workdays, it is significant that the Secretary initially believed 

that the potential injury must be evaluated as at least permanently disabling. See Sec’y Resp. 

at 3; see also n. 7, supra. Moreover, the degree of severity of injury contemplated by the statute 

must be viewed in the context of well-accepted principles of statutory construction. The 

meaning of doubtful words in an ambiguous statute may be determined by “the coupling of 

words denot[ing] that they should be understood in the same general sense.” 2A Sutherland 

Statutory Construction § 47.16 (7th ed.). Associating the expectation of a “serious bodily 

injury” with the expectation of death evidences a Congressional intent that only grave injuries, 

or the reasonable expectation of such injuries, are contemplated by section 110(b)(2). When read 

in context, the statute clearly contemplates a grave injury resulting in either a significantly 

debilitating and/or a permanently disabling injury, as evidenced by a life altering or life 

threatening condition. Such injuries must be distinguished from acute and transitory injuries 

which resolve within a reasonable period of time. 

36 FMSHRC Page 1787
Moreover, although there are material differences, it is significant that both a section 

107(a) imminent danger order and a section 110(b)(2) flagrant violation require the same degree 

of injury, i.e., one that can be reasonably expected to cause death or serious bodily injury. 

Wyoming Fuel Company, 14 FMSHRC 1282, 1291 (Aug. 1992) (holding that an imminent 

danger order requires an expectation of “death or serious physical harm” before the hazardous 

condition can be eliminated). It is noteworthy that section 104(d)(1) provides that if an inspector 

finds that “conditions created by [a] violation do not cause imminent danger, the violation [could 

still be of] such nature as could significantly and substantially contribute to the cause or effect 

of a coal or other mine safety or health hazard.” In promulgating section 110(b)(2), Congress 

required that a flagrant violation must pose the same risk of death or serious bodily injury as 

required for an imminent danger, rather than an injury of a reasonably serious nature as required 

for an S&S violation. Thus, Congress, in effect, recognized that flagrant violations are 

significantly more serious than most S&S violations. Consequently, the Secretary’s 

interpretation that most actual or potential lost workday injuries satisfy the requisite severity of 

injury required by section 110(b)(2) is unreasonable.

It is noteworthy that imminent danger orders and flagrant violations do not conflict with, 

nor are they substitutes for, each other. While both require remedial urgency, an imminent 

danger requires a miner’s actual exposure to the danger posed by the hazardous condition. 

Moreover, unlike a flagrant violation, an imminent danger order may be issued regardless of 

the obviousness of the hazard, and without regard to whether the hazard is attributable to the 

negligence of the mine operator. In addition, an imminent danger order may be issued even if 

the hazardous condition does not constitute a violation of a safety standard. In fact, the plain 

language of section 107(a) states that imminent danger orders can be issued in conjunction with 

citations seeking a penalty under the provisions of Section 110.11 

11 Section 107(a) provides: 

If, upon any inspection or investigation of a coal or other mine

. . . the Secretary finds that an imminent danger exists, 

such representative shall determine the extent of the area of such 

mine throughout which the danger exists, and issue an order 

requiring the operator of such mine to cause all persons, except 

those referred to in section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of the Secretary determines that such imminent 

danger and the conditions or practices which caused such 

imminent danger no longer exist. The issuance of an order under 

this subsection shall not preclude the issuance of a citation under 

section 104 or the proposing of a penalty under section 110. 

30 U.S.C. 817(a) (emphasis added).

36 FMSHRC Page 1788
As a final note, limiting the flagrant provisions of section 110(b)(2) to only the most 

serious of violations, as intended by Congress, will not materially adversely affect deterrence. 

The most effective means of achieving compliance is the deterrent effect of 104(d)(1) 

withdrawal orders issued under the Mine Act that explicitly require stoppages of production 

until abatement is achieved. See, Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 

36 FMSHRC __, slip op. at 13 (May 2014) (dissenting), citing Amax Lead Co., 4 FMSHRC 975, 

978-79 (June 1982) (holding that unwarrantable failure withdrawal sanctions are among the 

strongest compliance incentives provided by the Act’s enforcement scheme). A significant loss 

of production is a far greater economic loss, particularly for moderate and large operators, than 

civil penalties proposed under the Act. Although the deterrent effect of civil penalties must not 

be trivialized, the more important role of a flagrant violation charge is that it hopefully will 

shock the conscience of, if not disgrace, a recalcitrant mine operator. Such designations may 

also expose operators to greater civil liabilities for the death or serious injuries that such 

violations may cause. 

ORDER

In view of the above, IT IS ORDERED that, in order for the Secretary to establish that 

the cited condition in Order No. 8520664 constitutes a repeated flagrant violation under section 

110(b)(2), the Secretary must bear the burden of demonstrating the following criteria: 

(1) A repeated flagrant violation is a flagrant violation12 that is demonstrated by either 

(a) a repeated failure to eliminate the violation properly 

designated as flagrant, or 

(b) a relevant history of violations that also meet the 

requirements for a flagrant violation with respect to 

knowledge, causation and gravity, as enumerated below.13 

(2) A flagrant violation must be a known violation that is conspicuously dangerous, in that it 

cannot reasonably escape notice. 

(3) A flagrant violation must be the substantial and proximate cause of death or serious 

bodily injury that has occurred or can reasonably be expected to occur. 

12 A condition designated as a repeated flagrant violation may also be attributable to 

reckless conduct. Such violations may warrant higher civil penalties under section 110(b)(2). 

13 This criterion adopts the Secretary’s belief that a previous violation relied upon as a 

predicate must “demonstrate the threshold gravity and negligence required by section 110(b)(2).” 

See page 8, supra, citing Sec’y Resp. at 11. 

36 FMSHRC Page 1789
(a) A substantial and proximate cause is a dominant cause 

without which death or serious bodily injury would not 

occur. 

(b) A serious bodily injury is a grave injury that results in 

significant debilitating and/or permanent impairment. 

(c) Such injury is reasonably expected to occur if there is a 

significant probability of its occurrence. 

The Commission’s rules authorize the Judge to require parties to submit pre-hearing 

statements that will avoid unnecessary proof, advance rulings on the admissibility of evidence, 

and aid in the expedition of the hearing or the disposition of the case. See 29 C.F.R. §§ 

2700.53(a)(2), (a)(6) and (b). Accordingly, IT IS ORDERED that the Secretary provide, 

in writing, within 21 days of the date of this Order, a statement regarding whether or not 

the conditions cited in Order No. 8520664, as well as the conditions in any predicate citations 

the Secretary relies on to establish the subject repeated flagrant violation, satisfy each of the 

above enumerated evidentiary criteria.14 

With regard to elevating the cited condition to flagrant, the Secretary should state why 

the subject condition and its predicate conditions are so conspicuously bad and hazardous that 

they cannot reasonably escape notice. In this regard, the Secretary’s position that the subject 

conditions could be reasonably expected to substantially and proximately cause death or serious 

bodily injury should be supported by identification of sources of ignition,15 if any, that are 

located in proximity to the cited accumulations. The Secretary should also identify any other 

aggravating factors deemed relevant. 

In specifically describing the aggravating factors relied upon, the Secretary should be 

mindful of MSHA’s Program Policy Manual concerning enforcement of section 75.400, which 

states, in pertinent part: 

Accumulations of coal dust, loose coal, or the combination of the 

two offer serious fire and explosion hazards and must be removed 

from the mine if, in the judgment of the inspector, they would 

lead to an intensification or spreading of a fire or an explosion. 

In evaluating whether the coal dust and loose coal would lead to an 

14 The failure to timely provide the requested detailed pre-hearing statement may result 

in deletion of the repeated flagrant designation. 

15 The terms “sources of ignition” and “potential sources of ignition” are not 

synonymous. It is not uncommon for coal dust to accumulate on the mine floor along conveyors 

and in proximity to belt rollers. I assume that the Secretary is not arguing that violations of 

section 75.400 based on accumulations in proximity to, or that are touching, properly functioning 

rollers constitute per se flagrant violations. 

36 FMSHRC Page 1790
intensification or spreading of a fire or an explosion, the inspector 

should consider all the facts concerning the deposit. For example, 

float coal dust, loose coal and/or coal dust deposited near working 

faces and in active haulage entries, where sources of ignition are 

likely to be, are more hazardous than similar deposits in back 

entries. . . . 

In citing a violation, the inspector should describe fully the 

conditions and practices, such as the location, dimensions, etc. 

Imminent danger conditions normally can be considered to exist 

when accumulations of coal dust, float coal dust, loose coal, and 

other combustible materials are exposed to probable explosion and 

fire ignition sources, and the conditions observed could reasonably 

be expected to cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed in the area 

before the dangerous conditions are eliminated. There may be 

times when the inspector’s interpretation of what is an 

accumulation of float coal dust, loose coal and coal dust and/or 

other combustible materials will differ with the opinion of others. 

However, the inspector should base his decision upon the facts 

surrounding each occurrence, and document such facts as the 

dimensions, type, specific location, and all other related factors. 

The inspector’s decision as to what is an accumulation must be an 

objective one based on the facts or circumstances surrounding each 

occurrence. 

V MSHA Program Policy Manual, Sec. 75.400, at 46-47 (Feb. 2003) (updated Feb. 2014) 

(emphasis added). 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

/tmw 

36 FMSHRC Page 1791
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

June 23, 2014 

ORDER DENYING MOTION FOR SUMMARY DECISION

Before: Judge Gill 

This case is before me upon a complaint of discrimination, brought under section 105(c) 

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

proceedings are governed by procedural rules found at 29 C.F.R. Part 2700, Subpart E 

(Complaints of Discharge, Discrimination or Interference). The complainant, Leslie A. Pride 

(“Pride”), filed an appeal to this court on December 3, 2009. The operator, Highland Mining 

Company, L.L.C. (“Highland”), filed a motion for summary decision on June 29, 2011. After 

reviewing the pleadings and the record, I find that Highland is not entitled to judgment as a 

matter of law and deny Highland’s motion. 

Facts 

Pride began working for Highland on February 23, 2006. Pride V.S. ¶ 1. Pride injured his 

back while attempting to lift a 70-pound tank of acetylene during his work at Highland in 

August, and again in May, 2006. Id. at 2. After each incident, Pride requested that Highland 

write an accident report, and Highland refused on the grounds that the injury was due to a preexisting condition and thus was not work-related. Id.

Following an examination in October, 2006, Pride’s physician determined that his injury 

was work-related, and that he should not continue working. Exhibit A. Pride ceased working in 

October, 2006. Id. at 5. Highland offered Pride payment for sickness and accident benefits 

beginning in October 2006, with the stipulation that he would have to pay those benefits back 

LESLIE A. PRIDE 

 Complainant 

v. 

HIGHLAND MINING COMPANY, L.L.C. 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

DISCRIMINATION PROCEEDING 

Docket No. KENT 2010-318-D 

MSHA Case No. MADI CD 2009-11 

Mine: Highland 9 Mine 

Mine ID: 15-02709 

36 FMSHRC Page 1792
should he obtain worker’s compensation benefits. Id. at 11. On October 19, 2007, Highland 

notified Pride of his suspension with the intent to discharge. Exhibit D.

 1

On April 14, 2009, MSHA contacted Pride due to ongoing investigations about 

Highland’s repeated failure to issue safety reports, and encouraged him to file a discrimination 

complaint. Pride V.S. ¶ 9. Following the investigation, MSHA cited Highland for repeated 

violations of Title 30 Code of Regulations for failure to issue safety reports. Exhibit D. 

Because he does not have an injury report on file, Pride has been denied worker’s 

compensation benefits. Pride V.S. ¶ 7. Pride has also experienced delays in receiving UMWA 

pension, health card, and social security benefits. Id. at 8. 

Discussion of Relevant Law 

When considering a motion for summary decision, the standard is set out in Commission 

Procedural Rule 67, which states that a motion for summary decision shall be granted only if, on 

the basis of the entire record, there is no genuine issue of material fact, and the moving party is 

entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). The Commission “has 

long recognized that ‘[s]ummary decision is an extraordinary procedure,”’ and has analogized it 

to Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme Court has 

indicated that summary decision is authorized only ‘upon proper showings of the lack of a 

genuine, triable issue of material fact.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 

1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. 

Catrett, 477 U.S. 317, 327 (1986)). 

 

 1

 In 2007, Pride was charged with, and ultimately convicted for, trafficking over five 

pounds of marijuana. Pride objects to and contests the admission of any information related to 

such charges on the grounds that it is irrelevant to his discrimination claim. Commission rule § 

2700.63 states that “relevant evidence... that is not unduly repetitious or cumulative is 

admissible.” See also 5 U.S.C. 556 (exclusion of irrelevant, immaterial, or unduly repetitious 

evidence). I conclude that the evidence concerning Pride’s marijuana charge is irrelevant for the 

purposes of determining whether his discrimination claim survives summary decision. Such 

evidence may be relevant at a hearing on the merits. 

36 FMSHRC Page 1793
To establish a prima facie case of discrimination under Section 105(c) (1)2

 of the Act, 

Pride bears the burden of establishing that he engaged in protected activity and that the adverse 

action complained of was motivated by that activity. Sec’y of Labor Ex Rel. Robinette v. United 

Castle Coal Company, 3 FMSHRC 803 (Apr.1981) (quoting Sec’y of Labor on behalf of Pasula 

v. Consolidation Coal Company, 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 

sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981)). A prima facie case 

thus requires evidence sufficient to support a conclusion that (1) the individual engaged in 

activity protected under the Act, (2) the individual suffered adverse action, and (3) the adverse 

action complained of was motivated in any part by that activity. See Driessen v. Nev. Goldfields, 

Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2786; Robinette, 3 FMSHRC at 

817. 

The burden of proof for a prima facie case “is lower than the ultimate burden of 

persuasion.” Turner v. Nat’l Cement of CA, 33 FMSHRC 1059, 1065 (May 2011). Factors 

considered in assessing whether a prima facie case exists include the operator's knowledge of the 

protected activity, hostility or “animus” towards the protected activity, timing of the adverse 

action in relation to the protected activity, and disparate treatment. Sec’y of Labor on behalf of 

Green v. D&C Mining Corp., 33 FMSHRC 243 (Jan. 2011). The prima facie case may be 

rebutted by showing either that no protected activity occurred or that the adverse action was in 

no part motivated by the protected activity. Robinette, 3 FMSHRC at 818, n. 20. 

Analysis 

Pride claims that the discrimination occurred when Highland refused to file the injury 

reports in violation of Title 30 of the Code of Federal Regulations. He argues that this resulted in 

an unjust denial of his worker’s compensation benefits. 

Highland argues that Pride’s claim should be dismissed as a matter of law for four 

reasons: that Pride filed his discrimination complaint in an untimely manner; that he did not 

 2

 Section 105(c) (1) of the Act, 30 U.S.C. § 815(c) (1) states in relevant part: 

No person shall discharge or in any other manner discriminate against ... or 

otherwise interfere with the exercise of the statutory rights of any miner ... because such 

miner ... has filed or made a complaint under or relating to this Act, including a complaint 

notifying the operator or the operator's agent, or the representative of the miners ... of an 

alleged danger or safety or health violation ..., or because such miner ... is the subject of 

medical evaluations and potential transfer under a standard published pursuant to section 

101 or because such miner ... has instituted or caused to be instituted any proceeding 

under or related to this Act or has testified or is about to testify in any such proceeding, or 

because of the exercise by such miner ... on behalf of himself or others of any statutory 

right afforded by this Act. 

36 FMSHRC Page 1794
engage in any protected activity; that he did not suffer an adverse employment action; and that 

his complaint does not seek a remedy available to him under 105(c). 

The dispositive questions are whether, viewing all of the evidence in the light most 

favorable to Pride, there are genuine issues of material fact, and whether Highland is entitled to 

judgment as a matter of law. For reasons outlined below, I hold both that there are genuine issues 

of material fact, and that Highland is not entitled to judgment as a matter of law. 

I. Untimeliness 

Highland argues that because Pride filed his request approximately two and a half years after 

the statutory time period had elapsed, and nearly five years after the alleged discrimination 

occurred, his complaint should be dismissed for untimeliness. 

Section 105(c)(2) of the Act states, “any miner... who believes that he has been... 

discriminated against by any person in violation of this subsection may, within 60 days after such 

violation occurs, file a complaint with the Secretary alleging such discrimination.” 

The Commission has held that this 60-day time limit may be extended given a showing of 

“justifiable circumstances.” Herman v. IMCO Services, 4 FMSHRC 2135, 2137 (Dec. 1982); 

Hollis v. Consol. Coal Co., 6 FMSHRC 21, 24 (Jan. 1984). There is no bright-line standard for 

determining whether justifiable circumstances exist. Circumstances that could establish 

justifiable circumstances include the miner bringing the complaint to the attention of another 

agency or to his employer within the 60-day period, or the miner failing to meet the time limit 

because he is misled about, misunderstands, or is ignorant of his rights. Hollis at 24. 

 Pride does not contend that there were justifiable circumstances that would excuse his 

delay in filing. However, even if there are no such circumstances, Highland is not entitled to 

judgment as a matter of law for untimeliness because it has not provided evidence that it has 

suffered material legal prejudice due to Pride’s delay in filing his discrimination complaint. 

A complaint may be dismissed, even if justifiable circumstances are shown, where the 

mine operator can show prejudice such as loss of critical evidence or unavailability of a witness. 

Fulmer v. Mettiki Coal Corp., 30 FMSHRC 523, 525 (June 2008) (ALJ). The Commission has 

held that evidence of prejudice is a primary consideration in determining whether to grant an 

extension. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1387 (Dec. 1999). The Commission 

has likewise held that, “absent a showing of material legal prejudice,” a complaint should not be 

dismissed for untimeliness. Sec’y of Labor on behalf of Nantz v. Nally & Hamilton Enterprises, 

Inc., 16 FMSHRC 2208, 2215 (Nov. 1994); see also Sec’y of Labor on behalf of Hale v. 4-A 

Coal Company, Inc., 8 FMSHRC 905, 909 (June 1986) (prejudice is the “requisite foundation” 

for a dismissal based on untimeliness); Sec’y of Labor v. Salt Lake County Road Department, 3 

FMSHRC 1714, 1716 (July 1981) (“basic principle of administrative law that substantive agency 

36 FMSHRC Page 1795
proceeding, and effectuation of a statute’s purpose, are not to be overturned because of a 

procedural error, absent a showing of prejudice”). 

Here, Highland has failed to show prejudice. The operator has not shown a loss of critical 

evidence, nor has it shown the unavailability of any key witnesses. Highland argues that 

prejudice is inherent in a delay of over 2 years, and that prejudice could be “reasonably inferred” 

from the extensive delays in prosecuting the case. Sec’y of Labor v. Curtis Crick, 15 FMSHRC 

735 (Apr. 1993) (ALJ). However, the principle in Crick is not applicable in this case. For one, 

Pride has filed a pro se complaint. Additionally, and more importantly, Crick does not involve a 

discrimination complaint, but rather concerned a civil penalty involving equipment defects. For 

these reasons, I find the principle in Fulmer – that while memories may have faded, Denison 

must show “concrete prejudice attributable to delays” – controlling in this case. 30 FMSHRC at 

530. Thus, Pride’s complaint should not be dismissed for untimeliness. 

II. Protected Activity 

As outlined above, a prima facie case requires that Pride show he engaged in an activity 

protected by the Act. Section 105(c) (1) enumerates five rights protected under the Act: (i) filing 

a complaint related to the act, including a complaint notifying the operator of an alleged danger 

or safety or health violation; (ii) being subject to medical evaluations and potential transfer under 

standards published pursuant to Section 101; (iii) instituting or causing to be instituted any 

proceeding related to the Act; (iv) testifying in any proceeding related to the Act; and (v) 

exercising any statutory right afforded by the Act. 

Pride does not allege that he engaged in any of the enumerated activities listed above. 

Rather, Pride argues that he suffered discrimination because he was refused injury reports from 

his accident. 

 In a case involving complaints about the issuance of an inaccurate report following a 

miner’s accident, the evidence established that the complainant was seeking to establish his right 

to an additional ten percent increase in payments under his workman’s compensation benefits, 

and that the inaccuracy of the report constrained him from doing so. Mooney v. Sohio Western 

Mining Co., 4 FMSHRC 440, 444 (Mar. 1982) (ALJ). The judge held that if the complaints were 

“motivated by a sincere belief ... that such matters were related to safety and health conditions of 

the mine, it would constitute protected activity.” Id. On review, the Commission upheld the 

decision of the ALJ, but specifically declined to “address whether the judge erred in determining 

that Mooney's complaints upon his return to work were not protected simply because of their 

monetary basis.” Mooney v. Sohio Western Mining Co., 6 FMSHRC 510 (Mar. 1984). 

This case can be distinguished in several ways. First, the operator in Mooney issued an 

inaccurate injury report, whereas here Highland failed to issue two injury reports. A failure to 

issue a report has a much stronger bearing on the health and safety of the mine than a complaint 

36 FMSHRC Page 1796
that is largely accurate with regard to health and safety conditions. Additionally, in its 

investigation of Highland’s mine, MSHA noted 13 prior instances of Highland failing to report 

on-the-job injuries, which support a reasonable inference that a genuine health and safety issue 

exists there. Exhibit D. Finally, the decision in Mooney was written after a full hearing, and was 

based on a credibility judgment with regard to the complainant’s motive. Such a determination 

would be inappropriate here, at the summary decision stage. My role in the summary decision 

phase is to determine whether a factual dispute exists, not to resolve it. That determination is 

reserved for hearing, where the parties can present their evidence, and I can the make the 

credibility determinations required for a factual determination of these issues. 

A reasonable fact-finder could find that Pride was motivated, in whole or in part, by a 

concern for health and safety. However, assuming arguendo that Pride was solely motivated by 

monetary concerns, in light of the fact that Highland outright refused to issue an injury report at 

all, and in light of the repeated instances of Title 30 violations, Pride’s activity could be 

protected even if it was solely motivated by pecuniary concerns. The complainant’s motive is 

relevant, if not necessarily controlling, for the purposes of determining whether he has made a 

prima facie case of discrimination. Pride’s motive must at least be considered before I can 

determine whether his activity is considered protected activity. Thus, based on the available 

evidence, I cannot make a conclusive determination with regard to whether Pride engaged in 

protected activity. 

III. Adverse Action 

Highland contends that a refusal to issue safety reports does not constitute adverse action 

as understood under Section 105(c) (1) of the Act. Adverse action is defined as “an act of 

commission or omission by the operator subjecting the affected miner to discipline or a detriment 

in his employment relationship.” Pendley v. Fed. Mine Safety & Health Rev. Commn., 601 F.3d 

417, 428 (6th Cir. 2010). However, the Commission has also recognized that while 

“discrimination may manifest itself in subtle or indirect forms of adverse action,” nevertheless, 

“an adverse action ‘does not mean any action which an employee does not like.’” Sec’y of Labor 

on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n.2 (Aug. 1984) 

(quoting Fucik v. United States, 655 F.2d 1089, 1096 (Ct. Cl. 1981). The Commission has held 

that the test articulated by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. 

White, 548 U.S. 53, 57 (2006), should be applied in Mine Act cases to ascertain whether adverse 

action has occurred. Sec’y of Labor on behalf of Pendley v. Highland Mining Company, 34 

FMSHRC 1919 (Aug. 2012). Under the Burlington standard, adverse action consists of action 

that would have been “materially adverse to a reasonable employee.” Id. This means “that the 

employer’s actions must be harmful to the point that they could well dissuade a reasonable 

worker from making or supporting a charge of discrimination.” Id.

Here, Pride explicitly states in his complaint that he was not fired, suspended, or laid off 

as a result of his request for an accident report. Exhibit B. Indeed, Pride actually argues that he 

36 FMSHRC Page 1797
should have been laid off from employment per Highland’s company policy of automatic 

termination for employees that cannot return to work after 52 weeks of sick leave. Pride V.S., 3. 

Instead, Pride asserts that the adverse action taken against him by Highland consisted of a refusal 

to issue accident reports. 

 On the basis of the record, viewing the evidence in the light most favorable to the 

complainant, I conclude that Highland’s refusal to issue a safety complaint constitutes adverse 

action. Highland’s actions go beyond mere action that an employee does not like. Rather, Pride 

has presented evidence that Highland has engaged in a pattern of denying injury reports to 

miners in violation of Title 30. Exhibit D. The legislative history of the Mine Act, in relevant 

part, states: 

It is the Committee's intention to protect miners against not only the common forms of 

discrimination, such as discharge, suspension, demotion, reduction in benefits, vacation, 

bonuses and rates of pay, or changes in pay and hours of work, but also against the more 

subtle forms of interference, such as promises of benefit or threats of reprisal. 

S. Rep. No. 181, 95th Cong., 1st Sess. 30 (1977). 

I conclude that a refusal to issue injury reports falls under the penumbra of the “more 

subtle forms of interference.” One of the major purposes of the discrimination protections 

contained in the Mine Act is to encourage miners to take an active role in enforcement of the 

Act. “[I]f 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.” Id. Taking an active role in enforcement certainly includes requesting injury 

reports, as the judge in Mooney admits. 4 FMSHRC at 444. Repeated refusal to issue injury 

reports interferes with this right, and discourages miners from requesting those reports in the 

future. 

Additionally, Pride seeks unemployment, social security, and medical card benefits, 

which he cannot obtain without an injury report on file. If true, this suggests that the action taken 

has grave impacts on the quality of Pride’s life. Thus, although Highland’s actions do not fall 

under the umbrella of common forms of discrimination, they fall within the penumbra of the 

“more subtle forms of discrimination,” because a reasonable finder of fact could determine that 

Highland is effectively using its denial to issue an injury report as a tool to inflict harm upon 

Pride. 

In light of the purpose of the Act, the negative effects of the action on Pride, and the 

potential effect it could have on future injury reports by other miners, I conclude that Highland’s 

actions constituted adverse action. 

IV. Causal Nexus 

 In addition to establishing protected activity and adverse action, a prima facie case 

requires evidence that the adverse action was motivated, in whole or in part, by the protected 

activity. 

36 FMSHRC Page 1798
The sufficiency of the motivation element of its prima facie case depends on inferences 

that can be reasonably drawn from the record. The Commission has frequently stressed the 

importance of inferential evidence when making out a prima facie case, because it is unlikely 

that there will be direct evidence of discrimination when it has occurred: “[d]irect evidence of 

motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y 

of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), 

rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

The court in Chacon identified several characteristic marks of discriminatory intent, 

including (1) knowledge of the protected activity; (2) hostility towards the protected activity; (3) 

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

treatment of the complaint. Id. at 2510. Additionally, with regard to motivation, “circumstantial 

evidence... and reasonable inferences drawn thereof may be used to sustain a prima facie case.” 

Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at 

2510). It would therefore be inappropriate to grant summary decision, where multiple mutually 

incompatible interpretations could reasonably be drawn from agreed-upon facts in a case. Empire 

Electronics Co v. U.S., 311 F.2d 175, 180 (2d. Cir. 1962); Hanson Aggregates New York, Inc., 

29 FMSHRC 4 (Jan. 2007). “When the inferences which the parties seek to have drawn deal with 

questions of motive,” the issue of multiple possible inferences becomes particularly important. 

Empire Electronics, 311 F.2d at 180. 

Here, there is sufficient evidence for a reasonable fact-finder to conclude that Highland’s 

refusal to issue the injury reports was motivated by Pride’s request for issuance of the injury 

reports. A coworker has averred that Pride informed both his immediate supervisor and the 

safety director, James Allen, of his injury. Roper Aff. A reasonable fact-finder could infer that 

Highland was aware of Pride’s request for the injury report. Additionally, the refusal followed 

almost immediately after the complaint, and Highland maintained its refusal to issue the injury 

report several times after the initial request, supporting an inference of coincidence in time 

between the protected activity and alleged discrimination. Finally, there is evidence that 

Highland has refused to issue injury reports to several miners over an extended period of time 

which allows for a potential inference of animus towards the requests for injury reports. On these 

facts, a reasonable fact-finder could infer that Highland’s refusal to issue the injury reports was 

motivated, in whole or in part, by Pride’s request for the injury report. 

V. Remedy 

Pride seeks specific performance as his remedy: he requests that the Commission order 

Highland to issue the injury report. Highland contends that this is not a remedy afforded to 

miners under section 105(c) of the Act, and that he is not seeking “tangible relief.” 

The Commission has held that, “so long as our remedial orders effectuate the purposes of 

the Mine Act, our judges and we possess considerable discretion in fashioning remedies 

36 FMSHRC Page 1799
appropriate to varied and diverse circumstances.” Sec’y of Labor v. Azko Nobel Salt Inc., 19 

FMSHRC 1254 (July 1997) (quoting Sec’y of Labor on behalf of Dunmire v. Northern Coal Co., 

4 FMSHRC 126, 142 (Feb. 1982) (vacation pay and hearing expenses in addition to back pay)) 

(restoration of prior position following a discriminatory demotion). This notion is supported by 

the text of Section 105(c)(2) which states, in relevant part: 

The Commission shall have authority in such proceedings to require a person committing 

a violation of this subsection 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 pay and interest. 

30 U.S.C. § 815(c) (2). (emphasis added) 

Pride seeks neither reinstatement nor back pay. His request for relief is unique, and 

presents a case of first impression. I hold that, in line with the discretion afforded to judges under 

Section 105(c) (2) in providing appropriate remedies, the remedy Pride seeks is appropriate. 

While it may not fully “make him whole” with regard to the alleged discrimination, it would at 

least partially ameliorate the harm Pride has suffered. Were it not for the alleged discrimination, 

Pride readily admits that he would have been terminated after a maximum of 52 weeks of sick 

leave, but he would have benefitted from UMWA and medical benefits starting from that point 

onwards. Issuing the injury reports would allow Pride to enjoy future benefits, even if it does not 

make him whole with respect to past benefits. Thus, I conclude that Pride has not sought relief 

that necessitates dismissal as a matter of law. 

Because Highland is not entitled to judgment as a matter of law, I will deny the motion, 

and the case will proceed to hearing. 

WHEREFORE, the motion for summary decision is DENIED. 

 /s/ L. Zane Gill 

 L. Zane Gill 

 Administrative Law Judge 

36 FMSHRC Page 1800
Distribution: 

K. Brad Oakley, Jackson Kelly PLLC, 175 E. Main St., Suite 500, Lexington, KY 40507 

Leslie A. Pride, 681 State Rt. 365, Sturgis, KY 42459 

/as 

36 FMSHRC Page 1801
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

June 24, 2014 

 

ORDER REQUIRING JOINT STIPULATIONS AND RESUBMISSION OF MOTIONS 

AND EXHIBITS FOR SUMMARY DECISION

Before: Judge Rae 

 This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The parties 

submitted cross-motions for summary decision on May 16, 2014 and responses on June 11, 

2014. In total, the motions consisted of over 1,180 pages, including exhibits and briefs, in 

addition to seven full length DVDs. This volume of information is generally not appropriate for 

motions for summary decision. In addition, the parties did not submit a set of stipulated facts. 

Instead, the Secretary filed a 55 page statement consisting of 181 facts. 

 In its response, the Respondent states that the Secretary ignored specific facts. The 

Secretary has alleged numerous facts such as a unity of corporate ownership between Austin 

Powder Company and each of its subsidiaries which Respondent has refuted. Thus, it appears 

that there are disagreements regarding facts that are material to a determination of whether the 

parent corporation and this particular subsidiary at issue here are a unitary operator; the very 

issue upon which the parties seek a summary decision. 

AUSTIN POWDER COMPANY, 

 Contestant 

 v. 

 SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

AUSTIN POWDER COMPANY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDING 

Docket No. PENN 2012-116-R 

Citation No. 7040091;01/20/2012 

Mine ID: 36-00884 E24 

Mine: River Hill Coal Company 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2012-172 

A.C. No. 36-00884-281523 E24 

Mine: River Hill Coal Company 

36 FMSHRC Page 1802
 In a conference call, the Respondent stated that it did not stipulate to the set of facts that 

the Secretary submitted, but that it would not object to the facts if the judge reviewed the 

underlying documents that the Secretary stated his facts were based on. This would effectively 

require me to carefully review each exhibit (1000+ pages and seven DVDs), make a 

determination as to what information in each is material to the issue at bar, cross-reference it 

with the Secretary’s list of unstipulated facts and then cull through the Respondent’s motion and 

brief to determine whether they are in agreement with those facts. Essentially, the parties seek 

the court to do their homework for them. 

 In addition, the parties submitted motions that contained information and arguments 

seeking a determination on whether all of Respondent’s subsidiaries should be considered a 

unitary operator with Austin Powder Company.1

 I do not have broad and unfettered jurisdiction 

to consider or decide whether all of Austin Powder’s subsidiaries share a similar parentsubsidiary relationship and whether they should be considered a unitary operator. These motions 

for summary decision arise as a result of a partial settlement of the underlying citation accepted 

by a former ALJ of this Commission.2

 Reserved was the issue of whether the parent company’s 

size and points for past violations should be considered in proposing the appropriate penalty for 

the citation issued to the River Hill Coal Company. Only this particular issue, involving the 

River Hill Coal Company mine, is before me, and only information about this mine and its 

corresponding subsidiary, Austin Powder Northeast, LLC, and its relationship with Austin 

Powder Company will be considered in ruling on these cross-motions. 

Respondent has focused on the manner in which MSHA made its determination under the 

Berwind Natural Resources3 decision to determine whether this subsidiary should have an 

independent mine id number. It appears that Respondent would seek a determination whether 

MSHA acted arbitrarily or capriciously in making this determination although it correctly 

acknowledges that I do not have jurisdiction to make such a determination. This information is 

therefore irrelevant and will not be considered by me.4 

 1

 There are several other dockets involving violations issued to other Austin Powder 

subsidiaries that are assigned to other ALJs and are not before me. 

2

 Judge William Steele issued a Decision Approving Partial Settlement on May 2, 2013. 

He has since retired and this docket was reassigned to me on January 2, 2014. 

3 See Berwind Natural Resources Corp, et al, 21 FMSHRC 1284 (1999). 

4

 The Secretary had filed a motion in limine to exclude evidence of MSHA’s 

determination that Austin Powder and its subsidiaries constituted a unitary operator. The motion 

was denied by Judge Steele for several reasons, generally related to the fact that such evidence 

may be helpful to him at trial and there being no risk of prejudice in a bench hearing. I find that 

the consideration of this evidence on cross-motions for summary judgment relating solely to the 

issue of the appropriate penalty for this citation is overly burdensome, irrelevant, and as stated 

above, raises an issue beyond my jurisdiction herein. 

36 FMSHRC Page 1803
WHEREFORE, it is ORDERED in accordance with the guidelines provided above that 

the parties shall cull out the relevant facts from each of the documents, DVDs etc. submitted with 

their respective motions and reduce them to a Joint Stipulation of Material Facts citing the 

specific supporting exhibit by number and page or DVD number. The joint stipulated facts shall 

pertain only to this mine and Austin Powder Northeast, LLC and its relationship to the parent 

company. It is FURTHER ORDERED that any information included in any motion not set 

forth in the stipulated facts is also referenced by exhibit number, page and line number. It is 

FURTHER ORDERED that the parties resubmit supporting documents, DVD’s etc. that are 

relevant only to the relationship between this cited mine, Austin Powder Northeast, LLC, and 

Austin Powder Company. It is FURTHER ORDERED that each party shall resubmit its motion 

in support of summary decision based on the joint stipulated facts and that the motions shall be 

no more than 30 pages in length. The joint stipulated facts, motions and exhibits shall be 

submitted within 3 weeks (21 days) of this order. Extensions will not be granted absent good 

cause. 

 /s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Stephen Turow, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd

Floor, Arlington, VA 22209 

Christopher Pence, Esq., Wm. Scott Wickline, Esq., Hardy Pence, PLLC, 500 Lee Street East, 

Suite 701, P.O. Box 2548, Charleston, WV 25329 

36 FMSHRC Page 1804
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 202-844-5268 

June 26, 2014 

 

ORDER DENYING RESPONDENT’S MOTION TO COMPEL

Before: Judge Miller 

 These cases are before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Respondent, MClass Mining, filed a Motion to Compel. Subsequently, the Secretary filed a Response to the 

Motion. For the reasons set forth below, I DENY Respondent’s Motion. 

The above captioned dockets include four 104(d)(2) orders issued to M-Class in June and 

August of 2012. Respondent represents, in its motion, that the parties reached a settlement of 

one of the four orders. Three orders remain in dispute. 

In April of 2013 M-Class learned that MSHA was conducting a 110(c) special 

investigation into the facts and circumstances surrounding the three remaining orders. These 

cases were stayed until April 1, 2014 in hope that MSHA would be able to complete its 

investigation and the 110(c) matter could be consolidated with these cases. However, MSHA 

was unable to complete the investigation prior to the expiration of the stay, and these matters 

were set for hearing on July 23, 2014. On May 1, 2014 I issued an Order Denying Motion to 

Extend Stay explaining that MSHA had ample time to complete its investigation given that the 

citations and orders had been issued approximately two years prior. The Secretary, in his 

response to M-Class’s Motion to Compel, indicates that the investigation remains “open” but 

does not explain the status of the case. 

Prior to the stay of these matters, in December of 2012, M-Class filed discovery requests 

with MSHA seeking “all documents relating to the . . . special investigation of the incident(s) 

that is (are), in part, the subject of this matter including but not limited to, copies of . . . 

investigators’ notes; photographs; transcripts of interviews; tapes of interviews, memoranda; 

reports and draft reports, notes, correspondence and records of any other MSHA personnel.” 

Mot. Ex. 1 p. 7. The Secretary objected to the “vague, overly broad and burdensome” request, 

which “seeks to discover information protected by the confidential informant privilege, attorneyclient privilege, attorney work product privilege and deliberative process privilege.” Mot. Ex. 2 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

M-CLASS MINING, LLC, 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2013-47 

A.C. No. 11-03189-300361-01 

Docket No. LAKE 2013-123 

A.C. No. 11-03189-303475 

Mine: MC #1 Mine 

36 FMSHRC Page 1805
p. 11. The Secretary also responded that the special investigation being undertaken as a result of 

the violative conditions found by the MSHA Inspectors was currently open and active, and 

therefore, the documents related to the special investigation would not be produced. Id. at 11-12. 

On June 3, 2014 M-Class filed the Motion to Compel in which it seeks to have the court 

compel the Secretary to “complete responses to Respondent’s First Set of Interrogatories and 

Requests for Production of Documents and to authorize the deposition of Special Investigator 

Robert Bretzman.” Mot. 1. M-Class argues that, while the Secretary asserts that various 

privileges apply to the documents sought, he does not specifically identify those documents and 

fails to identify the basis for non-disclosure of the documents in the special investigation file. Id. 

at 3. Further, Respondent argues that, because the Secretary has not produced a privilege log, it 

is “left to speculate what MSHA is withholding and cannot evaluate the appropriateness of 

MSHA’s objects.” Id. at 4. Respondent states that the Secretary’s assertion of a blanket 

privilege is inappropriate and that it is well-settled law that certain documents associated with a 

Section 110(c) investigation are discoverable and a blanket refusal to produce any material from 

the file is inappropriate. In making its argument, Respondent relies in part on Judge Feldman’s 

decision in Root Neal & Company, 21 FMSHRC 135 (July 1999) (ALJ) in which he directed the 

disclosure of certain documents after the 110(c) investigation had been completed and a decision 

made that an agent case would not be pursued by MSHA. I am not bound by the decisions of 

other administrative law judges but, nevertheless, I find that Judge Feldman’s case is 

distinguishable from the instant matter. Id. at 838. Here, the investigation has not been 

completed and MSHA has not yet determined whether it will pursue charges. 

On June 9, 2014 the Secretary filed a response to the motion. The Secretary asserts that 

the 110(c) “investigation is currently open, and until such time as the results are reviewed, 

finalized, and the decision is made whether to proceed with a case against Respondent’s agents 

personally, the Secretary argues that the information contained in the Special Investigator’s file 

is subject to privileges outlined in the Secretary’s response” to Respondent’s discovery request. 

Sec’y Response 2. The Secretary also argues that special investigations are conducted by MSHA 

in anticipation of litigation and, accordingly, a privilege attaches to the information sought by 

Respondent. Id. Further, because Respondent cannot demonstrate that it is unable to gather 

substantially the same information by other means without undue hardship, the Secretary need 

not turn over any of the documents sought. Id. at 2-3. The Secretary also notes that, because the 

investigation remains open, counsel for the Secretary is not in possession of any of the requested 

documents, and only has the documents pertaining to the orders at issue in LAKE 2013-47 and 

LAKE 2013-123, all of which have been provided to Respondent in preparation for the hearing 

into the orders in question. Id. at 3. Finally, the Secretary notes that, at present, the issue of 

“whether . . . agents of Respondent willfully disregarded the standards is not before this court[.]” 

Id. Rather, the only issues before the court are whether the alleged violations occurred and if the 

violations constituted an unwarrantable failure to comply. Based on the foregoing, the Secretary 

asserts that privilege protects the documents sought, and, because any deposition testimony from 

Investigator Bretzman would be related to protected documents, the deposition is unnecessary. 

Id. at 4. 

Commission Procedural Rule 56 permits discovery by a number of methods, including 

production of documents and deposition. 29 C.F.R § 2700.56(a). The rule further provides that 

36 FMSHRC Page 1806
parties “may obtain discovery of any relevant, non-privileged matter that is admissible evidence 

or appears likely to lead to the discovery of admissible evidence.” 29 C.F.R § 2700.56(b) 

(emphasis added). In the event a party fails to respond to a discovery request, or objects to a 

request, the party seeking discovery may petition the court to compel the non-moving party to 

respond. 29 C.F.R § 2700.59. 

Respondent, M-Class, has petitioned the court to compel the Secretary to produce (1) 

documents generated as part of MSHA’s special investigation into potential 110(c) charges 

against an agent of Respondent, and (2) the special investigator for deposition. As the Secretary 

notes, the investigation into the 110(c) matter is ongoing, and is a separate matter from the 

violations that are at issue in this case. I agree with the Secretary that the documents contained 

in the special investigation file are subject to the work product, deliberate process and informant 

privileges. I also find that the deposition of the special investigator is not appropriate given that 

the information he has gathered is subject to the same privileges. Further, I find that, given the 

questioned relevance of the information sought as it relates to this proceeding, the fact that the 

investigation has not been completed, and the ability of the Respondent to obtain substantially 

the same information on its own accord, the Respondent’s motion should be denied. Finally, I 

noted that, unlike a FOIA request, there is no requirement that a party responding to discovery 

prepare a privilege log and particularly prepare a privilege log for a file that is not a part of the 

cases at issue here. 

It is important to distinguish this penalty proceeding against the mine operator from 

potential 110(c) proceedings against agents of the mine. While run-of-the-mill penalty 

proceedings against mine operators are initiated for, among others, the purpose of obtaining 

judgments against operators for violations of the Act, 110(c) proceedings are initiated for the 

purpose of obtaining judgments against individual agents of a mine. Unlike standard penalty 

proceedings, 110(c) charges are preceded by a special investigation conducted by a MSHA 

Special Investigator. Generally, the investigation is initiated following the issuance of citations 

or orders to the mine operator. The investigation commonly includes interviews of employees 

of the operator, some of whom may be confidential miner informants. Often, a representative of 

the mine is present for statements given to the investigator that are not subject to the informant’s 

privilege, and most information obtained through these interviews is available to the mine 

operator. The investigation eventually results in a report and MSHA decision whether to file 

110(c) charges. The special investigation into whether to charge agents is conducted for the sole 

purpose of determining whether the agents should be assessed a separate penalty and, therefore, 

is undertaken wholly in anticipation of that litigation. While the two proceedings are frequently 

consolidated and heard at the same time, MSHA is often slow in completing its investigation 

and, in order to keep the facts and evidence associated with the original violation from becoming 

stale, the underlying orders are sometimes heard on their own as any other penalty case. See 

e.g., Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999) 

The instant proceedings involve petitions for penalty filed by the Secretary against 

Respondent for four alleged violations of mandatory standards. While the Secretary 

acknowledges that a 110(c) investigation has been undertaken, the investigation is not complete 

and MSHA has yet to reach a decision whether to charge individual agents of the mine. As a 

result, at present, no 110(c) proceeding exists and consolidation of the issues is impossible. In 

36 FMSHRC Page 1807
the event the Secretary completes the special investigation and an agent case is filed with the 

Commission, it is possible that the 110(c) proceeding could be consolidated with the above 

captioned dockets and at that time, the special investigation file may be subject to discovery 

requests However, until that occurs, the scope of this proceeding is limited to operator liability 

for the four alleged violations contained in the above captioned dockets. Therefore, discovery of 

the special investigation file and deposing the special investigator has no place in this case. 

Instead this is a normal penalty case and, based on the Secretary’s representation to the court, all 

documents relevant to the underlying orders have been produced by the Secretary. 

The Secretary has asserted that multiple privileges attach to the requested materials. I 

agree. First, I find that the work product privilege attaches to the investigatory file documents 

sought by the Respondent. In Asarco Inc., 12 FMSHRC 2548, 2557-2558 (Dec. 1990) the 

Commission explained that the work product privilege is a “qualified immunity against 

discovery.” A party may withhold otherwise discoverable materials if they are (1) documents 

and tangible things; (2) prepared in anticipation of litigation or for trial; (3) by or for another 

party or by or for that party’s representative. Id. at 2558; Fed R. Civ. P. 26(b)(3). Here, the 

materials sought by M-Class meet all three elements of the test. 

The materials sought by M-Class are documents and tangible things prepared by a party 

to the case. The discovery request seeks, in pertinent part, “all documents relating to the . . . 

special investigation of the incident(s) that is (are), in part, the subject of this matter including 

but not limited to, copies of . . . investigators’ notes; photographs; transcripts of interviews; tapes 

of interviews, memoranda; reports and draft reports, notes, correspondence and records of any 

other MSHA personnel[.]” Mot. Ex. 1 p. 7. The Commission has acknowledged that it is not 

required that the materials “be prepared by or for an attorney.” Asarco Inc.,12 FMSHRC 2548, 

2558 (Dec. 1990). Clearly the items sought are documents and/or tangible things produced by 

the special investigator or other representative of the Secretary. I find that the materials meet the 

first and third elements of the work product test. 

The materials sought were prepared in anticipation of litigation. The phrase “prepared in 

anticipation of litigation” was defined in Hickman v. Taylor, 329 U.S. 495, 505(1947) where the 

court framed the issue as being “the basic question” of whether one party's counsel may “inquire 

into materials collected by an adverse party's counsel in the course of preparation for possible 

litigation.” The Commission has stated that a “major function of an MSHA special investigation 

is to determine whether litigation should be commenced under section 110(c) . . . of the Mine 

Act.” Asarco Inc.,12 FMSHRC 2548, 2559 (Dec. 1990). Accordingly, materials generated in 

the course of the special investigation are prepared in anticipation of litigation. Here, the 

materials contained in the special investigation file were generated, and are possibly still being 

generated, in anticipation of potential charges against individual agents of the mine. The 

Commission has recognized that, where “two cases are closely related,” the “documents prepared 

for one case have the same protection in a second case.” Id. While MSHA has yet to decide 

whether to pursue an agent case, given that any potential agent case will stem from the facts and 

circumstances surrounding the orders at issue in this proceeding, these cases are clearly “closely 

related.” As a result, the protection afforded the materials in the special investigation file, which 

were generated in anticipation of a 110(c) proceeding, extends to the instant proceeding, thereby 

satisfying the second element of the work product test. 

36 FMSHRC Page 1808
While the materials satisfy the Commission’s three part test, they may be subject to 

discovery “upon a showing that the party seeking discovery has substantial need of the materials 

in the preparation of the party's case and that the party is unable without undue hardship to obtain 

the substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3). I find that 

no such showing has been made. Respondent speculates that the information in the file would be 

beneficial “at trial for impeachment and refreshing recollection.” Mot. 6. The Commission has 

acknowledged that “by itself, the desire to determine through discovery whether potential 

impeachment material exists within protected work product does not constitute a ‘substantial 

need’ for purposes of the work-product privilege.” Consolidation Coal Co., 19 FMSHRC 1239, 

1243 (July 1997). Further, and as noted by the Secretary, the discoverable information 

contained in special investigation reports consists of interviews of employees of the mine 

operator; information which is certainly possible for the mine operator to obtain on its own 

accord. I find that Respondent has not demonstrated a substantial need for the material in the 

special investigation file, and the contents of the file are protected by the work product privilege. 

Moreover, I find that the special investigator’s deposition testimony “would only be relevant 

insofar as being related to the documents” which I have already found to be subject to work 

product privilege. Accordingly, I refuse to compel the Secretary to produce Special Investigator 

Bretzman for deposition. 

I note that, presumably, the special investigation file includes documents related to the 

underlying orders at issue in the above captioned cases. While that information may be in the 

special investigation file, the Secretary represents that all information pertaining to the orders at 

issue in these dockets has already been turned over to Respondent. As a result, I need not 

compel production of those documents, which are likely to be duplicative of those already in the 

possession of Respondent. To the extent that the Secretary has not turned over discoverable 

documents generated prior to the initiation of the 110(c) investigation, he is ordered to do so. 

 I also find that the informant privilege applies to the materials sought by M-Class. In 

Bright Coal Co., 6 FMSHRC 2520, 2522 (Nov. 1982) the Commission recognized that the 

informant privilege allows the Secretary to “withhold from disclosure the identity of persons 

furnishing information of violations of law to [MSHA].” See 29 C.F.R. § 2700.61 (requiring that 

a judge “shall not, except in extraordinary circumstances, disclose or order a person to disclose 

to an operator or his agent the name of an informant who is a miner.”) In Asarco Inc., 14 

FMSHRC 1323, 1329-1330 (Aug. 1992) the Commission explained that the privilege protects 

from disclosure material that “tend[s] to reveal an informant’s identity.” Here, the Secretary has 

asserted that the information contained in the special investigation file is protected by the 

informant’s privilege. As previously stated, special investigation files routinely contain 

interviews and statements of miner informants. Undoubtedly, interviews and statements of 

miner informants, as well as reports mentioning the names of those informants, would reveal the 

informant’s identity and are subject to the privilege. 

The informant privilege may be defeated if a judge conducts a balancing test and 

determines that the “respondent’s need for the information is greater than the Secretary’s need to 

maintain the privilege to protect the public interest,” Bright Coal Co. at 2526. I find that 

Respondent has failed to make such a showing. Factors to be considered in conducting this 

36 FMSHRC Page 1809
balancing test “include whether the Secretary is in sole control of the requested material or 

whether . . . [M-Class] ha[s] other avenues available from which to obtain the substantial 

equivalent of the requested information.” Id. I have already explained that the discoverable 

information contained in special investigation files consists of interviews of employees of the 

mine operator; information which is certainly possible for the mine operator to obtain on its own 

accord. As a result, I find the balance does not tip in favor of disclosure of the information. 

Moreover, to reiterate, the Secretary represents that information in the 110(c) investigation file is 

not being relied upon to support the Secretary’s penalty case against the mine operator. 

Respondent speculates that the information in the file would be beneficial “at trial for 

impeachment and refreshing recollection.” Mot. 6. However, I find that the need to impeach or 

refresh the recollection of potential witnesses does not overcome the Secretary’s need to 

maintain the privilege to protect the public interest and is not “essential to fair determination.” 

Bright Coal Co. at 2526. 

The 110(c) special investigation has not been completed, MSHA has not decided whether 

to charge an agent of the operator, and the issue of agent liability is not before me. Given the 

objective of 110(c) investigations and the government’s interest in the investigation not being 

obstructed, it would be inappropriate for the court to compel the production of the investigation 

documents and deposition of the special investigator prior to the conclusion of the investigation. 

Moreover, it would be inappropriate for the court, prior to the completion of the investigation, to 

order an in camera review of the documents for the purpose or analyzing whether privilege 

attaches. 

With the scope of this proceeding in mind, I find that, based on the information presently 

before me, it is unlikely that the documents and deposition testimony sought in Respondent’s 

Motion to Compel are relevant to the above captioned proceeding, and that, even if they are 

relevant, as discussed above, they are subject to the work product and informant privileges. All 

information necessary for the successful defense of the orders at issue in this case has been 

provided by the Secretary and is otherwise available to the operator through the mine. 

Additionally, when a mine operator challenges a citation or order, I assume that they do so in 

good faith and that they have investigated the matter and are aware of all of their defenses to the 

citation or order. A special investigation into the actions of an agent of the operator will not alter 

or add to the reasons the mine has for contesting the underlying orders. 

The threshold issue of any discovery dispute is whether or not the information sought is 

relevant. Rule 56 makes clear that, even in the event that evidence is not privileged, it must still 

be relevant in order to be discoverable. Here, the information sought by Respondent is related to 

the issue of agent liability. The issue of agent liability is not before me and, therefore, MSHA’s 

investigatory documentation and the investigator’s deposition testimony, which presumably 

would not include first-hand knowledge of the events in question, is unlikely to be relevant to the 

underlying orders at issue. 

Finally, while I find no merit to the Secretary’s argument that the file is not in the hands 

of the attorney for MSHA, I find, as discussed above, that the file is subject to privilege and is 

not required to be disclosed. The file contains a separate and distinct investigation, and that 

investigation occurred after the violations that are alleged in this case were issued. While the file 

36 FMSHRC Page 1810
is in the hands of the Secretary, it does not, as noted, contain information that is being withheld, 

that would be relevant to the underlying citations at issue in this case. The mine operator can be 

prepared for hearing based upon the files in these cases and the information disclosed by the 

Secretary without the disclosure of any further material that was gathered solely for the purpose 

of determining whether or not a separate penalty should be assessed against an agent of the 

operator. However, that file and information contained therein may be required to be disclosed 

when and if an agent case is filed. 

Respondent’s Motion to Compel is DENIED. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Travis Gosselin, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn St., 

Room 844Chicago, IL 60604-1502 

Christopher Pence, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329 

 

36 FMSHRC Page 1811