JANUARY AND FEBRUARY 2007 

COMMISSION DECISIONS AND ORDERS 

01-05-2007 

01-17-2007 

01-19-2007 

01-22-2007 

01-22-2007 

01-22-2007 

01-22-2007 

01-22-2007 

01-22-2007 

01-22-2007 

01-26-2007 

01-26-2007 

01-26-2007 

02-01-2007 

02-12-2007 

02-12-2007 

02-12-2007 

UMW A, Local 1248 v. Maple Creek Mining 

Hanson Aggregates New York, Inc. 

Fisher Sand & Gravel Company 

Highland Mining Company 

Chestnut Coal 

Chestnut Coal 

Spartan Mining Company, Inc. 

Spartan Mining Company, Inc. 

Spartan Mining Company, Inc. 

Mammoth Coal Company 

United Taconite LLC. 

Jim Walter Resources, Inc. 

Pinnacle Mining Company, LLC. 

Grangeville Transit Mix, Inc. 

Wolf Run Mining Company 

Wolf Run Mining Company 

ICG, Eastern, LLC. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

Aracoma Coal Company 

Highland Mining Company 

R S & W Coal Company, Inc. 

Webster County Coal, LLC. 

Highland Mining Company, LLC. 

Chestnut Coal 

Spartan Mining Company, fuc. 

Spartan Mining Company, Inc. 

Chestnut Coal 

Spartan Mining Company 

Chestnut Coal 

01-04-2007 

01-08-2007 

01-11-2007 

01-12-2007 

01-17-2007 

01-19-2007 

02-01-2007 

02-05-2007 

02-06-2007 

02-06-2007 

02-07-2007 

02-08-2007 Lawrence L. Pendley v. Highland Mining 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-22-2007 Marfork Coal Company 

01-29-2007 Michael Sonney v. Alamo Cement Co., Ltd. 

i 

PENN 2002-23-C 

YORK 2005-22-M 

WEST 2007-143-M 

KENT 2006-189-R 

PENN 2006-89-R 

PENN 2006-145-R 

WEV A 2006-540-R 

WEV A 2006-527-R 

WEV A 2006-556-R 

WEVA 2006-759-R 

LAKE 2007-32-M 

SE 2007-130 

WEV A 2007-201 

WEST 2007-143-M 

WEVA 2007-238 

WEVA 2007-239 

WEVA 2007-240 

WEV A 2007-2-R 

KENT 2006-102 

PENN 2007-106-R 

KENT 2006-320 

KENT 2006-189-R 

PENN 2006-145-R 

WEV A 2006-540-R 

WEVA 2006-527-R 

PENN 2006-145-R 

WEV A 2006-556-R 

PENN 2006-89-R 

KENT 2007-83-D 

WEV A 2006-934 

CENT 2007-1-DM 

Pg. 1 

Pg. 4 

Pg. 19 

Pg. 22 

Pg. 26 

Pg. 30 

Pg. 34 

Pg. 38 

Pg. 42 

Pg. 46 

Pg. 50 

Pg. 53 

Pg. 56 

Pg. 62 

Pg. 66 

Pg. 69 

Pg. 72 

Pg. 75 

Pg. 80 

Pg. 86 

Pg. 90 

Pg. 95 

Pg. 97 

Pg. 99 

Pg. 102 

Pg. 107 

Pg. 111 

Pg. 115 

Pg. 119 

Pg. 121 

Pg. 122 

JANUARY AND FEBRUARY 2007 

Review was granted in the following case during the months of Januazy and Februazy: 

Secretary of Labor, MSHA v. Highland Mining Company, Docket No. KENT 2006-189-R, et al. 

(Judge Hodgdon, January 17, 2007) 

Secretary of Labor, MSHA v. Chestnut Coal Company, Docket No. PENN 2006-89-R, et al. 

(Judge Zielinski, unpublished Order of Dismissal, December 21, 2006) 

Secretary of Labor, MSHA v. Chestnut Coal Company, Docket No. PENN 2006-145-R, et al. 

(Judge Zielinski, January 19, 2007) 

Secretary of Labor, MSHA v. Spartan Mining Company, Inc., Docket No. WEV A 2006-540-R, et 

al. (Judge Zielinski, unpublished Order of Dismissal, January 8, 2007) 

Secretary of Labor, MSHA v. Spartan Mining Company, Inc., Docket No. WEVA 2006-527-R, et 

al. (Judge Zielinski, unpublished Order of Dismissal, December 21, 2006) 

Secretary of Labor, MSHA v. Spartan Mining Company, Inc., Docket No. WEVA 2006-556-R, et 

al. (Judge Zielinski, unpublished Order of Dismissal, December 21, 2006) 

Secretary of Labor, MSHA v. Mammoth Coal Company, Docket No. WEVA 2006-759-R. (Judge 

Bulluck, unpublished Order of Dismissal issued December 29, 2006) 

Vurnun Edwurd Jaxun v. Asarco, LLC., Docket No. WEST 2006-416-DM. (Judge Bulluck, 

November 28, 2006) 

Secretary of Labor on behalf of Lawrence L. Pendley v. Highland Mining Co., LLC., Docket No. 

KENT 2006-506-D. (Judge Barbour, January 18, 2007) 

Review was denied in the following case during the months of January and February: 

SecretaryofLabor, MSHA v. Musser Engineering, Inc., Black Wolf Coal Company, and PBS 

Coals, Inc., Docket No. PENN 2004-152, PENN 2004-157, and PENN 2004-158. (Interlocutory 

Review of Judge Lesnick's July 21, 2006 Order) 

11 

COMMISSION DEQSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

UNITED MINE WORKERS OF 

AMERICA, LOCAL 1248 

V. 

MAPLE CREEK MINING, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 5, 2007 

Docket No. PENN 2002-23-C 

ORDER 

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

§ 801 et seq. (2000) ("Mine Act" or "Act"). Pursuant to section 111 of the Mine Act, 30 U.S.C. 

§ 821, the United Mine Workers of America, Local 1248 ("the UMW A") seeks compensation for 

miners idled by a July 31, 2001, order issued by the Secretary of Labor's Mine Safety and Health 

Administration ("MSHA") requiring the withdrawal of miners from a mine of Maple Creek 

Mining, Inc. ("Maple Creek"). On May 4, 2006, Administrative Law Judge Michael Zielinski 

denied Maple Creek's motion for summary decision on the claim for compensation. 28 

FMSHRC 407 (May 2006) (ALJ). Upon Maple Creek's motion for reconsideration, the judge 

invited the Secretary of Labor to appear as amicus curiae and file a brief on the reconsideration 

motion, which she did. 28 FMSHRC 904 (Oct. 2006) (ALJ). The judge subsequently denied the 

motion. Jd; 

Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, Maple Creek 

thereafter moved for certification of the judge's rulings for interlocutory review, and the UMW A 

filed a response in opposition. On December 14, 2006, the judge granted Maple Creek's motion, 

certifying for review the question of whether the MSHA withdrawal order became final for 

purposes of section 111 of the Act. Applying Rule 76(a)(l)(i), the judge found that his prior 

rulings on summary decision involved a controlling question of law and that immediate review 

by the Commission may materially advance the final disposition of the case. 

Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion 

of the Commission and that the Commission may grant interlocutory review upon a 

determination that the judge's interlocutory ruling involves a controlling question of law and 

immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). Upon consideration of the judge's certification, we hereby grant review of the 

29FMSHRC 1 
judge's decisions on motion for summary decision and the issue of whether the MSHA 

withdrawal order became final for purposes of section 111 of the Act. We also grant, sua sponte, 

amicus curiae status to the Secretary of Labor. 

Maple Creek and the UMW A are hereby ordered to file initial briefs 20 days from the 

date of this order. Response briefs by both parties, as well as the Secretary's amicus brief if she 

chooses to file one, will be due 10 days following service of the last initial brief. 

29FMSHRC2 
Distribution 

Melanie J. Kilpatrick, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 (fax & regular mail) 

Judith Rivlin, Esq. 

United Mine Workers of America 

8315 Lee Highway 

Fairfax, VA 22031 (fax & regular mail) 

Timothy S. Williams, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 (fax & regular mail) 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 3 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HANSON AGGREGATES 

NEW YORK, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 1 7, 2007 

Docket No. YORK 2005-22-M 

BEFORE: Duffy, Chai~an; Jordan and Young, Commissioners 

DECISION 

BY: Duffy, Chairman, and Young, Commissioner 

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

§ 801 et seq. (2000) ("Mine Act" or "Act"), and involves a citation alleging that Hanson 

Aggregates New York, Inc. ("Hanson"), violated 30 C.F.R. § 56.1421 l(c). 1 Following the 

submission of cross motions for summary decision on stipulated facts,2 Administrative Law 

Judge T. Todd Hodgdon granted the Secretary of Labor's motion and held that Hanson had 

violated the regulation. 27 FMSHRC 833 (Jan. 2005) (ALJ). The Commission thereafter 

ordered review of the judge's decision. For the reasons that follow, we vacate the judge's 

decision and remand this proceeding to the judge. 

1 Section 56.1421 l(c) provides that "[a] raised component must be secured to prevent 

accidental lowering when persons are working on or around mobile equipment and are exposed 

to the hazard of accidental lowering of the component." 

2 The cross motions each contained an identical "Stipulated Factual Background," which 

the judge set forth in his decision. See 27 FMSHRC at 833-34. Each party also included in its 

respective motion a set of Stipulated Material Facts ("SMF"), which, while not identical, differed 

little in substance from each other. The SMF citations used herein are to the Secretary's version 

(S.'s Mot. for Summ. Dec. at 5-8), which was the only complete version submitted to the 

Commission, and appears to be the version cited by the judge in his decision. 

29FMSHRC4 
I. 

Factual and Procedural Background 

The violation alleged arose out of a fatal accident that occurred on the morning of March 

23, 2004, at Hanson's Jordanville Plant in Herkimer, New York. Id. at 833-34. Several Hanson 

employees were involved in setting up a 75-ton P & H mobile crane on a ramp leading to the 

mine's primary crusher .. Id. at 833. The crew planned to use the crane to lift the crusher's feeder 

and hopper assembly off the crusher so that the assembly could be repaired. Id. 

The crane had been inspected twice in the previous month and had been found to be in 

good working order both times.3 A hoist ball with a hook was properly secured or rigged to the 

crane's auxiliary hoist line, which was the proper size and in good condition. 27 FMSHRC at 

834; SMF Nos. 12-13: The parties agreed that the load brake on that line constituted a "load 

locking device" or a device that "prevents free and uncontrolled descent," and that it was 

working properly at the time. SMF Nos. 7, 14. 

The crane was further equipped with an "anti-two-block" device. SMF No. 5. "Two 

blocking" occurs when an object such as a hoist ball is pulled tight against the tip of a crane's 

boom, snapping the hoist lin:e. 27 FMSHRC at 834. The parties stipulated that load brakes, antitwo-block devices, and proper rigging are the only load locking devices that Hanson could have 

used to prevent the free and uncontrolled descent of the hook and ball. SMF No. 15.4 

The way in which the anti-two-block device functioned depended upon the mode in 

which the crane was operating. When the crane approached a two.:.block condition while in 

"rigging/travel mode," the anti-two-block switch for the hoist approaching the two-block 

condition was supposed to trip or open, and the Microguard would display a red warning light. 

SMF 24. If the crane approached a two-block condition while in "work mode," one or both of 

the anti-two-block switches would trip or open, and the Microguard would activate hydraulic cut 

3 An equipment services contractor that inspected the crane on February 24, 2004, had 

determined that the crane did not suffer from any defects, including defects that affected safety. 

SMF No. 10. Hanson had also conducted a monthly inspection of the crane in early March 2004. 

SMFNo. 11. 

4 The anti-two-block device was a Microguard 424 Rated Capacity Indicator 

("Microguard"), a computerized system with anti-two-block elements. SMF No. 22. Those 

elements included two anti-two-block switches or devices: one for the main hoist line and one 

for the auxiliary hoist line. Id. The anti-two-block device had been inspected during both of the 

aforementioned inspections of the crane, and had been found to have been functioning properly, 

but was not inspected on the morning of March 24. SMF Nos. 10, 11, & 26. The Secretary does 

not consider the crane operator's failure to inspect the anti-two-block device to have been a cause 

of the accident here. SMF No. 30. 

29FMSHRC 5 
valves depending whether one or both hoists were approaching a two-block condition. SMF 25. 

The system would also sound an audible alarm and display a red warning light. Id. Activation of 

the hydraulic cut valves would essentially shut the crane down, hydraulically preventing a twoblock condition from occurring. Id. 

While the other members of the crew were extending the crane's outriggers and roping 

off the working radius of the crane, the crane operator, Robert Kimball, was setting up the crane 

and conducting his pre-shift examination. 27 FMSHRC at 834; SMF No. 28. As Kimball raised 

the crane's boom approximately 71 degrees and extended the boom about fifty feet, he apparently 

failed to lower or extend the auxiliary hoist line. 27 FMSHRC at 834. 

The extending boom eventually pulled the hoist ball tight against the tip of the boom, 

snapping the auxiliary hoist line. Id. The supervisor of the crew, Dean Robertson, was the 

designated signal or ground man, and at the time of the accident was standing to the side of the 

crane. Id. The hoist ball and hook fell and struck him, killing him instantly. Id. 

The Department of Labor's Mine Safety and Health Administration ("MSHA") 

subsequently investigated the accident. 5 MSHA was unable to determine whether the 

Microguard system was in "rigging/travel mode" or ''work mode" when the accident occurred. 

SMF No. 3. Moreover, while MSHA conducted tests on the crane, it could not determine 

whether the anti-two-block device was working properly and consistently on the day of the 

accident. SMF No. 6.6 

MSHA thereafter issued,Citation No. 6002658 to Hanson. 27 FMSHRC at 834. The 

citation eventually charged Hanson with violating 30 C.F.R. § 56.1421 l(c), alleging that "[t]he 

crane's anti-two-block device either was not activated or malfunctioned and there was no other 

functional means to prevent accidental lowering~" Id. 

In ruling upon the cross motions for summary decision, the judge identified the only issue 

in this case to be whether the hook and ball were secured to prevent lowering, as required by 

5 The Secretary's brief to the Commission cites the MSHA Report of Investigation into 

the accident and, in so doing, states background information on the case not included in the 

stipulated narrative of facts or any SMF. See S. Br. at 1-6. In its reply brief, Hanson requested 

that the Commission disregard the new factual allegations not included in the Stipulated Factual 

Background or the individual SMF. H. Reply Br. at 2, 6-7. The Secretary responded with a letter 

to the Commission acknowledging that the report had not been submitted to the judge and stating 

that her citations to the report were only for background and did not constitute probative 

evidence. Letter from Solicitor's Office, dated May 19, 2006. We did not consider the 

information from the report cited in the Secretary's brief in reaching our decision here. 

6 During the tests, the anti-two-block device worked at angles of 50 degrees or below, but 

failed to work consistently at angles above 50 degrees. SMF No. 6. 

29FMSHRC6 
section 56.1421 l(c). Id. at 835. Based on the description of the Microguard system, the judge 

posited three possible scenarios under which the accident might have occurred, depending upon 

the mode in which the crane was operating. Id. at 836. Drawing inferences from the stipulated 

facts, he disregarded as "unlikely'' the scenario which assumed that the anti-two-block device did 

not malfunction. Id. at 836. The judge also rejected Hanson's argument that the load brake on 

the auxiliary hoist line and the proper rigging of the ball and hook to the line constituted 

compliance with section 56.14211. Id. at 835. Consequently, the judge granted the Secretary's 

motion for summary decision, denied Hanson's cross motion, affirmed the citation, and assessed 

the $9,100 penalty proposed by the Secretary. Id. at 837-38. 

II. 

Disposition 

Hanson contends that the judge's finding of material fact that the anti-two-block device 

did not function properly was erroneous in thatit was improperly based on inferences which the 

judge drew from the limited record in the case. H. Br. at 12-16; H. Reply Br. at 3-6. The 

operator further maintains that because the crane was equipped with the only three load-locking 

devices that could have prevented the free and uncontrolled descent of the hook and ball, and that 

at least two of those devices were functioning properly, Hanson was in compliance with section 

56.1421 l(c). Id. at 9-12. 

The Secretary responds that under section 56.14211 a device intended to prevent the hook 

and ball from suddenly descending must be functioning; and the fact of the accident establishes 

that the crane's anti-two-block device was not doing so in this instance. S. Br. at 8 .. 13. 

According to the Secretary, the factual inferences which the judge drew in this case are 

undisputed, and thus the judge was well within his authority to rely on those inferences, in 

conjunction with the undisputed facts of the case, to reach the legal conclusion that Hanson 

violated section 56.1421 l(c). Id. at 13-14. 

Section 56.14211 is entitled ''Blocking equipment in a raised position" and provides in 

pertinent part: 

(b) Persons shall not work on top of, under, or work from a 

raised component of mobile equipment until the component has 

been blocked or mechanically secured to prevent accidental 

lowering ..... 

( c) A raised component must be secured to prevent 

accidental lowering when persons are working on or around mobile 

equipment and are exposed to the hazard of accidental lowering of 

the component. 

29FMSHRC 7 
( d) Under this section, a raised component of mobile 

equipment is considered to be blocked or mechanically secured if 

provided with a functional load-locking device or a device which 

prevents free and uncontrolled descent. 

30 C.F.R. § 56.14211(b), (c)-(d). 

Where the language of a regulatory provision is clear, the terms of that provision must he 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 

F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v. GTE Sylvania, Inc., 

447 U.S. 102, 108 (1980)); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). It is 

only when the meaning is ambiguous that deference to the Secretary's interpretation is accorded. 

See Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must "look to the 

administrative construction of the regulation if the meaning of the words used is in doubt") 

(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)). 

As the judge found, the requirements of section 56.14211(c) can be broken down into 

four elements: (1) a raised component of mobile equipment; (2) must be secured to prevent 

accidental lowering; (3) when persons are working on or around the equipment; and (4) are 

exposed to the accidental lowering of the component. See 27 FMSHRC at 835. There was no 

dispute that the crane was a piece of mobile equipment on or around which Robertson was 

working, and while doing so he was exposed to the accidental lowering of the hook and ball. Id. 

Moreover, the parties stipulated that "[t]he 'raised component' of the crane that Hanson allegedly 

failed to secure is the hook and ball originally secured to the crane's auxiliary hoist line.'' Id.; 

SMF No. 16. Consequently, the judge concluded that the only issue that remained to be decided 

on the cross motions for summary decision was the mixed question of law and fact: ''whether the 

hook and ball were secured to prevent accidental lowering" at the time of the accident. 27 . 

FMSHRC at 835. 

Summary decisions are governed by Commission Procedural Rule 67. Commission 

Procedural Rule 67(b) provides 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 oflaw. 

29FMSHRC8 
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 judgment 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(July1994) (quoting Missouri Gravel Co., 3 FMSHRC 

2470, 2471(Nov.1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).7 

In addition, appellate review of summary judgment decisions issued pursuant to Federal 

Rule 56 is de novo, in that the reviewing court applies the same Rule 56( c) standard as the trial 

court. lOA Charles Alan Wright, et al., Federal Practice and Procedure § 2716, at 273-74 (3d 

ed. 1998). Moreover, the Supreme Court has stated that ''we look at the record on summary 

judgment in the light most favorable to , .. the party opposing the motion," and that "the 

inferences to be drawn from the underlying facts contained in [the] materials [supporting the 

motion] must be viewed in the light most favorable to the party opposing the motion." Poller v. 

Columbia Broadcasting Sys., Inc., J68U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962). Consequently, the Commission has held that when it reviews a summary 

decision and determines that the record before the judge contained disputed material facts, the 

proper course is to vacate the grant of summary decision and remand the matter for an 

evidentiaryhearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316 (Aug. 1995); 

Missouri Gravel, 3 FMSHRC at 2473. 

Here, the judge's summary decision rests upon a factual dispute that he purported to 

resolve. Drawing upon the description of how the Micro guard system worked, the judge posited 

that one of three scenarios took place prior to the accident: 

(1) The crane was in the "rigging/travel mode," the anti-two-block 

switch for the hoist did not trip or open and/or the red warning 

light was not displayed; (2) The crane was in the ''work mode," 

the anti-two-block switches did not trip or open and/or the 

hydraulic cut valves were not activated, the audible alarm was not 

sounded and the red warning light was not displayed; or, (3) The 

crane was in either the "rigging/travel mode" or the "work mode," 

the hydraulic cut valves were activated, the audible alarm was 

7 Rule 56(c) provides for the filing of motions for summary judgment and states that: 

The judgment sought shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law. 

Fed. R. Civ. P. 56(c). 

29FMSHRC 9 
sounded and/or the red warning light was displayed and the crane 

operator ignored them. 

27 FMSHRC at 836. 

Under the first two scenarios, the Microguard system would not be considered to be a 

device that was "functioning," but under the third it may have. The judge went on, however, to 

discount the possibility of the third scenario: 

It seems unlikely that condition No. 3 occurred without there being 

any evidence of it. As noted above, if the hydraulic cut valves had 

been activated, the crane would have shut down whether the 

operator ignored the situation or not, and the accident would 

presumably have been prevented. Further; bystanders would have 

noticed the shut down.- Similarly, if an audible alann had sounded, 

bystanders would have heard it. Moreover, when MSHA tested the 

anti-two-block device after the accident, it worked when crane's 

boom was at 50° and below, but it did not work consistently when 

tested above 50°. (SMF 6.) When the accident occurred, the 

crane's boom was at approximately 71° according to the stipulated 

narrative. 

Id. The judge stated that he relied not only on the evidence, but also on "logical inferences to be 

drawn therefrom" in concluding that the Secretary had established that the anti-two-block device 

had not been working properly. Id. 

We conclude that the judge erred in granting summary decision in this case. First, he 

incorrectly held at the outset that because the Secretary and Hanson had each stipulated to the 

facts, the requirement ofRule 67(b){l) that there be "no genuine issue as to any material fact" 

had been met in this case. See 27 FMSHRC at 833. However, each of the cross motions was 

predicated on the filing party's position on what constituted the material facts necessary to 

dispose of the case according to that party. That does not necessarily mean that, when taken 

together, the two motions conclusively established the universe of facts that were in fact material 

to detennining whether Hanson violated section 56.14211. That is not a question for the parties 

to decide, but rather for the judge. See generally Federal Practice and Procedure§§ 2725 at 401 

("the principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact 

exists"), 2720 at 335-36 (in case of cross motions for summary judgment, "the court must rule on 

each party's motion on an individual and separate basis, determining, for each side, whether a 

judgment may be entered in accordance with the Rule 56 standard. Both motions must be denied 

if the court finds that there is a genuine issue of material fact.") (emphases added); 11 James 

Wm. Moore, et al., Moore's Federal Practice§ 56.l 1[5][a], at 56-105to107(3d ed. 1999) 

("Courts ruling on summary judgment motions are to review the submissions of the parties and 

29FMSHRC 10 
determine whether a factual dispute of sufficient magnitude exists to warrant trial.") (emphases 

added). 

Second, certain factual findings the judge made by drawing inferences from the stipulated 

facts do not withstand scrutiny when viewed in the light most favorable to the party opposing the 

motion, Hanson. For instance, the judge found that bystanders would have heard the Microguard 

system's audible alarm if it had sounded (27 FMSHRC at 836), despite the lack of any evidence 

regarding how the working environment was at the time in question. For example, the limited 

facts reveal nothing about ambient noise; where all potential witnesses might have been 

positioned, what they heard or observed, or the relative volume of the audible warning. 

Consequently, this was not a proper inference to draw in ruling upon a motion for summary 

decision. Likewise, inferring that MSHA's post-accident testing established the pre-accident 

condition of the anti-two-block device ignores the possibility that the device was functioning 

properly before the accident but was damaged during the accident. The judge can rely on 

inferences to make such findings only after the record has been more fully developed. 8 As stated 

by the Commission in a previous case, "[i]n entering summary decision ... , the judge was trying 

issues of fact through the summary decision procedure. This he cannot do." Missouri Gravel, 3 

FMSHRCat 2473. 

Similarly, the judge, in inferring that the accident could only be explained by a 

malfunction in the Microguard system, failed to take into account evidence that the accident 

instead could be attributed to operator error. Indeed, the parties specifically stipulated that 

"operator error was a root cause of the accident." SMF No. 17. The judge acknowledged the 

stipulation, but stated that "no information beyond that enigmatic statement is provided." 27 

FMSHRC at 836 n. l. However, while the stipulation may not supply much information when 

viewed in isolation, according to another of the stipulations, it appears that the crane operator 

8 We stress that inferences that could be considered reasonable in the context of a full 

record may not be sufficiently supported by the scant record stipulated to at this stage of the 

proceedings. The Commission has consistently held that "the substantial evidence standard may 

be met by reasonable inferences drawn from indirect evidence," and that inferences drawn by the 

judge are "permissible provided they are inherently reasonable and there is a logical and rational 

connection between the evidentiary facts and the ultimate fact inferred." Mid-Continent Res., 

Inc., 6 FMSHRC 1132, 1138 (May 1984). However, the grant of a summary decision motion is 

not reviewed under the substantial evidence standard, but rather, as discussed, under the more 

stringent de novo review of whether the Procedural Rule 67(b) standard has been met. 

Furthermore, even ifthe lower standard of review is applied, the thin record in the case 

necessarily prevents a determination of whether the inferences the judge drew were reasonable. 

As the Commission recognized in Mid-Continent, drawing inferences from evidence is 

particularly appropriate "where ... it is impossible or there is only a remote possibility of 

obtaining direct evidence to establish a violation." 6 FMSHRC at 1138. Here, where the parties 

made little effort to develop .the record and no evidentiary hearing took place, it was premature 

for the judge to rely on the inferences that he did in concluding that there was a violation. 

29 FMSHRC 11 
was conducting a preshift inspection at the same time he was raising and extending the boom. 

SMF No. 29. Further factual development is necessary on this issue, another clearly material 

issue. 

In addition, the sparse factual record that we have been presented with is particularly 

problematic given the Secretary's failure to explain what she expects of operators under the terms 

of subsection ( d) of section 56.14211 .. In interpreting section 56.14211 ( c ), we cannot ignore the 

import of subsection (d). See Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 

1990) (reading regulatory provision in context to determine whether its meaning was plain or 

ambiguous). Subsection (d) states that "[u]nder this section, a raised component of mobile 

equipment is considered to be blocked or mechanically secured if provided with· a functional 

load-locking device or a device which prevents free and uncontrolled descent." As noted, the 

parties stipulated that: (1) the ball and hook were properly rigged to the hoist line; (2) the load 

brake on the line, constituted, using the exact terms of section 56.14211(d), "a 'load locking 

device' or a device that 'prevents free and uncontrolled descent;'" and (3) the load brake was 

working properly at the time of the accident. SMF Nos. 7, 12, 14. We are unable to determine 

from the record developed in this case whether such conditions satisfied the requirements of 

section 56.14211 ( d). This is a question on which the judge first needs to pass, after the benefit of 

an evidentiary hearing which could include factual and expert testimony and the submission of 

documents. 

ill. 

Conclusion 

For the foregoing reasons, we vacate the judge's decision granting the Secretary's motion 

for summary decision and remand this case for a full evidentiary hearing. 

\ 

Michael 

29FMSHRC 12 
Commissioner Jordan, dissenting: 

The threshold question in this case - indeed, the central question - is the proper 

interpretation of the regulation at issue. That standard is entitled "Blocking equipment in a raised 

position" and provides in relevant part: 

( c) A raised component must be secured to prevent 

accidental lowering when persons are working on or around mobile 

equipment and are exposed to the hazard of accidental lowering of 

the component. 

( d) Under this section, a raised component of mobile 

equipment is considered to be blocked or mechanically secured if 

provided with a functional load-locking device or a device which 

prevents free and uncontrolled descent. 

30 C.F.R. § 56.1421l(c)-(d). 

Hanson contends that the prohibition against accidental lowering contained in section ( c) 

is qualified by the language of section ( d). H. Br. at 9-12. According to this view, an operator 

whose equipment has a properly working load-locking device cannot be cited under the 

regulation, even if the device fails to prevent an accidental lowering. In the present case, 

Hanson's crane was equipped with three load-locking devices. 27 FMSHRC 833, 835 (Nov. · 

2005) (ALJ). The parties stipulated that two of the three were working properly at the time of the 

accident. Stipulated Material Facts ("SMF") Nos. 7 and 12. Nonetheless, the hoist ball and hook 

accidently fell, killing Dean Robertson, who was standing next to the crane. 27 FMSHRC at 

834. 

The accident resulted from an occurrence commonly known as "two blocking." Id. The 

two-blocking accident occurred despite the fact the crane was equipped with an anti-two-block · 

load-locking device. The judge held that even though Hanson was not required to equip the 

crane with the anti-two-block device, once it chose to provide that mechanism, it had to make 

sure it functioned properly. Id. at 836-37. The judge inferred, on the basis of stipulated facts, 

that the anti-two-block device was not working properly at the time of the accident, and he 

upheld the violation on that basis. Id. My colleagues conclude that the scant stipulated record at 

this stage of the proceedings does not support the judge's inferences. Slip op. at 8-9. They· 

further conclude that summary judgment is not an appropriate vehicle for deciding this case· 

because the parties' stipulations do not establish the universe of facts that are material to a 

determination of whether Hanson violated section 56.14211. Id. at 7-8. 

I agree with my colleagues that certain of the judge's inferences are not supportable; 

however, those faulty inferences are only relevant to the judge's determination that the anti-twoblock system malfunctioned at the time of the accident. Unlike the judge, I do not consider such 

29FMSHRC 13 
a finding to be a necessary precondition for upholding the Secretary's enforcement action. 

Moreover, in contrast to my colleagues, I believe the stipulated facts provide a sufficient record 

for deciding the matter before us. · 

Among other things, the parties have agreed that the hook and ball constituted a "raised 

component" of the crane that Hanson allegedly failed to secure. SMF 16. There is no dispute 

that this ball and hook fell. 27 FMSHRC at 834. There is also agreement that a person was 

''working ... around mobile equipment and ... exposed to the hazard of accidental lowering." 

Id. 

The Secretary maintains that these facts support a violation of 56.1421 l(c), because that 

provision states that a "raised component must be secured to prevent accidental lowering." S. Br. 

at 8-9. Although 56.14211 ( d) allows an operator to secure the raised component by using a 

":functional load-locking device," the Secretary does not consider a load-locking device to be 

":functional" as that term is used in 56.141 l(d) if, despite the presence of that device, a free and 

uncontrolled descent nevertheless occurs. S. Br. at 8. Because none of the load-locking devices 

on the crane served to prevent the ball and hook from suddenly descending, the Secretary 

concluded the crane was not equipped with a :functional load-locking device within the meaning 

of the regulation. Id. at 12. 

Hanson contends that a violation occurs only when there is no properly working loadlocking device, and that this is not the situation here. H. Br. 11-12. Indeed, Hansoncontends it 

exceeded its obligation under the regulation by equipping the crane with two load-locking 

devices which were working properly at the time of the accident: load brakes and correct 

rigging. Id. This case therefore presents the issue of whether an operator violates section 

56.14211 ( c) whenever there is an accidental lowering of a raised component, or whether the 

Secretary is precluded from issuing a citation if, despite the accidental lowering, the operator 

demonstrates that the equipment contains at least one load-locking device that is shown to be in 

working order. Bepause the language of the regulation does not .explicitly resolve this dispute, I 

consider it ambiguous. 

Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different · 

meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 

F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11FMSHRC1926; 1930 (Oct. 1989); 

Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is 

ambiguous, courts· have deferred to the Secretary's reasonable interpretation of the regulation. 

See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec '.Y of 

Laborv. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation 

of its own regulation is 'of controlling weight unless it is plainly erroneous or inconsistent with 

the regulation'" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other 

citations omitted). The Secretary's interpretation of a regulation is reasonable where it is 

"logically consistent with the language of the regulation and ... serves a permissible regulatory 

29FMSHRC 14 
function." See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) {citation omitted). 

The Commission's review, like the courts', involves an examination of whether the Secretary's 

interpretation is reasonable. See Energy West, 40 F .3d at 463 (citing Secy of Labor on behalf of 

Bushnell v. Cannelton Indus., fuc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also 

Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) {examining whether Secretary's 

interpretation was reasonable). 

The Secretary construes the phrase "functional load-locking device" in section 

56,1421 l{d) to apply only to devices which prevent the accidental lowering ofraised components 

referred to in section 56.14211 { c ). S. Br. at 8. Under this view, a stipulation that a particular 

load-locking device was in working order {e.g. SMF No. 7) does not absolve Hanson from 

liability if a free and uncontrolled descent nevertheless occurs, even if the device might have 

prevented a different kind of accident. Given the purpose of the regulation, this is not an 

unreasonable interpretation. 

The regulatory history of section 56.14211 makes clear that this provision is about more 

than a mere requirement to provide certain devices on mobile equipment: 

When persons work on top of, under, or from mobile 

equipment in a raised position, or a raised portion of that 

equipment, there is a hazard that the raised portion may descend 

without warning. Miners have been seriously injured or killed 

when raised equipment or raised components of equipment have 

fallen unexpectedly. This standard sets forth safety requirements 

that are intended to prevent these occurrences. 

53 Fed, Reg. 32,496, 32,516 {Aug. 25, 1988). Thus, section 56.14211 was promulgated not 

simply to require that operators provide certain devices on cranes, but to actually protect against 

accidental lowering of raised components. 

The Commission decision in Fluor Daniel, 18 FMSHRC 1143 {July 1996), also supports 

the Secretary's position here. In that case, the operator was charged with a violation of 30 C.F.R. 

§ 56.14101(a)(l), which requires that self-propelled mobile equipment be provided with a service 

brake system capable of stopping and holding the equipment. The operator argued that since the 

standard provided the method and criteria for testing brakes under subsection {b ), and since it was 

stipulated that the brakes met the requirements of that subsection, the brakes did not violate the 

standard. The Commission concluded: 

Under its plain language, the service brakes must be capable of 

stopping and holding the equipment on the maximum grade it 

travels. The uncontroverted evidence established that the forklift's 

brakes failed to meet this requirement. ... Thus ... we reverse [the 

29FMSHRC 15 
judge's] determination that the Secretary failed to establish a 

violation of section 56.14101(a)(l). 

18 FMSHRC at 1146. 

In upholding the citation, the Commission rejected Fluor's argument that section 

56.1410l(b) limited the scope of subsection (a), pointing out that "[s]ection 56.1410l(b) relates 

only to the testing of service brakes when there is 'reasonable cause to believe that the service 

brake system does not function, as required'" and that "the tests contained in subsection (b) [were 

not] the exclusive means of determining the effectiveness of service brakes." 18 FMSHRC at 

1146. 

I do not find the Secretary's result-oriented approach to be unreasonable, given the 

language and purpose of the regulation. Subsection ( c) could reasonably be read in this manner, 

as it requires that the raised component must be secured and that accidental lowering must be 

prevented. Moreover, Hanson's interpretation of the regulation - that.it need only utilize a 

device specified in subsection (d) that is in working order to be in compliance-in effect reads 

subsection (c) out oftheregulation. This contradicts the elementary rule of construction that 

effect must be given to every word, clause and sentence in a statute, 1 and that it should be 

construed so that effect is given to all its provisions so that no part will be superfluous. Norman 

J. Singer, 2A Statues and Statutory Construction, § 46.06 (6th ed. 2000); see also Secy o/Labor 

v. Cannelton Indus., Inc., 867 F.2d 1432, 1438 (D.C. Cir. 1989) (rejecting a regulatory 

interpretation that read one subsection as circumscribed by another). 

Even if one could determine that Hanson's interpretation is reasonable, it is certainly not 

the only logical interpretation possible. It is not the role of the Commission to decide which of 

the two interpretations at issue is correct; our role is merely to determine if the Secretary's view 

is reasonable. See Secy of Labor v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996) 

(deferring to Secretary's interpretation of statutory provision regarding unemployment 

compensation). The D.C. Circuit emphasized this principle in Secretary of Labor v. Western 

Fuels-Utah, Inc., 900 F.2d 318, 320-321 (D.C. Cir. 1990) (adopting the Secretary's view that a 

training regulation that exempted "supervisory personnel" did not apply to supervisors when 

they were working as miners, even though the operator's facial reading of the standard was also 

reasonable). 

I conclude that the Secretary's interpretation of section 56.14211 is a reasonable one and 

should be accorded deference. 2 Accordingly, I do not believe any further fact finding on the part 

1 The principles or rules of statutory construction apply to administrative regulations. 

2 Am. Jur. 2d Administrative Law§ 245 (2004). 

2 Separate from the issue of regulatory interpretation is whether the operator has received 

fair notice of the Secretary's interpretation of the regulation. Gates & Fox Co. v. OSHRC, 790 

29FMSHRC 16 
of the judge is necessary, and therefore would not remand this case to him for a trial. Rather, I 

would affirm the judge's decision in result.3 

F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). However, that issue is not before us because 

on review Hanson has not asserted that it did not have adequate notice. 

3 Consistent with my analysis of the regulation, I disagree with the judge's statement that 

the result in this case could possibly be different if Hanson had not installed an anti-two-block 

device. Given that an accidental lowering occurred, pursuant to my analysis, this fact would not 

be relevant. 

29FMSHRC 17 
Distribution 

Mark N. Savit, Esq. 

R. Brian Hendrix, Esq. 

Patton Boggs, LLP 

2550 M Street, N.W. 

Washington, D.C. 20037 

Cheryl Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2247 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 18 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 19, 2007 

· Docket No. WEST 2007-143-M 

A.C. No. 24-00499-97717 

FISHER SAND & GRAVEL COMP ANY 

BEFORE: Duffy, Chairman; Jordan and Y oW1g, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 15, 2006, the Commission received from 

Fisher Sand & Gravel Company ("Fisher") a motion by counsel 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). 

On September 6, 2006, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued a proposed penalty assessment to Fisher for three citations. 

Fisher, at that time acting pro se, had previously contested the underlying citations and states that 

it believed that the previous contests also constituted contests of the penalties. The Secretary 

states that she does not oppose Fisher's request to reopen the penalty assessment. 

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

uncontested assessments that have become final Commission orders W1der section 105(a). Jim 

29FMSHRC 19 
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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

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

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

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

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

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

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

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

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

29FMSHRC20 
Distribution 

Laura E. Beverage, Esq. 

Jackson Kelly PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann? Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29FMSHRC 21 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 22, 2007 

HIGHLAND MINING COMP ANY, LLC 

Docket Nos. KENT 2006-189-R 

KENT 2006,.190-R 

KENT 2006-194-R 

KENT 2006-195-R 

KENT 2006-196-R 

KENT 2006-201-R 

KENT 2006-202-R 

KENT 2006-227-R 

KENT 2006-228-R 

KENT 2006-229-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involve Notices of Contest filed by Highland 

Mining Company, LLC ("Highland") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d), 

and were on stay pending the filing of corresponding civil penalty proceedings. The Secretary of 

Labor issued proposed civil penalties for the citations being contested, Highland contested those 

penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the Secretary has filed 

petitions for assessment of the penalties in Commission Docket Nos. KENT 2006-340 and 

KENT 2006-406. Consequently, in a sua sponte Order issued January 17, 2007, the judge lifted 

the stays and dismissed the contest cases, because "with the filing of the civil penalty cases, the 

contest proceedings are moot." 

In Energy Fuels Corp., I FMSHRC 299 (May 1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

29FMSHRC22 
As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special :findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even if he were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC 23 
The judge's order does not explain why the initiation of the civil penalty proceedings 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceedings. 1 

M ~c_#- Lu dan, co iSSiOilef 

1 Presently pending before the Commission on review is Maifork Coal Co., Docket Nos. 

WEV A 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Maifork remains open notwithstanding our disposition of the instant cases. 

29FMSHRC24 
Distribution 

Rebecca J. Oblak, Esq. 

Susan E. Wolford, Esq. 

Atkins & Oblak, PLLC. 

5000 Hampton Center, Suite 4 

Morgantown, WV 26505 

Neil A. Morholt, Esq. 

Office of the Solicitor 

U.S. DepartmentofLabor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC25 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CHESTNUT COAL 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

Docket Nos. PENN 2006-89-R 

PENN 2006-90-R 

PENN 2006-94-R 

PENN 2006-95-R 

PENN 2006-96-R 

PENN 2006-97-R 

PENN 2006-109-R 

PENN 2006-110-R 

PENN 2006-116-R 

PENN . 2006-119-R 

PENN 2006-120-R 

PENN 2006-121-R 

PENN 2006-122-R 

PENN 2006-123-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involve Notices of Contest filed by Chestnut 

Coal ("Chestnut") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). The Secretary of 

Labor issued proposed civil penalties for the citations being contested, Chestnut contested those 

penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the Secretary has filed a 

petition for assessment of the penalties in Commission Docket No. PENN 2007-26-M. 

Consequently, in a sua sponte Order issued December 21, 2006, the judge dismissed the contest 

cases without prejudice, because "[a]ll issues related to the alleged violations and the amount of 

the proposed penalties will be resolved in the civil penalty proceeding." 

29FMSHRC26 
In Energy Fuels Corp., 1 FMSHRC 299 (May 1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even ifhe were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consoUdated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC27 
The judge's order does not explain why the initiation of the civil penalty proceeding 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceeding. 1 · 

1 Presently pending before the Commission on review is Maifork Coal Co., Docket Nos. 

WEV A 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Marfork remains open notwithstanding our disposition of the instant cases. 

29FMSHRC28 
Distribution 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD 20705 

Mark V. Swirsky, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

The Curtis Center, Suite 630E 

170 S. Independence Mall West 

Philadelphia, PA 19106-3306 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC29 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CHESTNUT COAL 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

Docket Nos. PENN 2006-145-R 

PENN 2006-146-R 

PENN 2006-147.:.R 

PENN 2006-148-R 

PENN 2006-149-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involve Notices of Contest filed by Chestnut 

Coal ("Chestnut") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). The Secretary of 

Labor issued proposed civil penalties for the citations being contested, Chestnut contested those 

penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the Secretary has filed a 

petition for assessment of the penalties in Commission Docket No. PENN 2006-272. 

Consequently, in a sua sponte Order issued January 19, 2007, the judge dismissed the contest 

cases without prejudice, because "[a]ll issues related to the alleged violations and the amount of 

the proposed penalties will be resolved in the civil penalty proceeding." 

In Energy Fuels Corp., I FMSHRC 299 (May 1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

29FMSHRC 30 
that the Commission both could allow operators to immediately 

contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even if he were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and itsjudges mayat any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC 31 
The judge's order does not explain why the initiation of the civil penalty proceeding 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings~ a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceeding. 1 . 

1 Presently pending before the Commission on review is Maifork Coal Co., Docket Nos. 

WEV A 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Marfork remains open notwithstanding our disposition of the instant cases. 

29FMSHRC 32 
Distribution 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD 20705 

MarkV. Swirsky, Esq. 

Office of the Solicitor · 

U.S. Department of Labor 

The Curtis Center, Suite 630E 

170 S. Independence Mall West 

Philadelphia, PA 19106-3306 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 33 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

Docket Nos. WEV A 2006-540-R 

WEV A 2006-588-R 

WEV A 2006-589-R 

WEV A 2006-590-R 

SPARTAN MINING COMPANY, INC. 

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

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involve Notices of Contest filed by Spartan 

Mining Company, Inc. ("Spartan") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). 

The Secretary of Labor issued proposed civil penalties for the citations being contested, Spartan 

contested those penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the 

Secretary has filed a petition for assessment of the penalties in Commission Docket No. WEVA 

2007-79. Consequently, in a sua sponte Order issued January 8, 2007, the judge dismissed the 

contest cases without prejudice, because "[a]ll issues related to the alleged violations and the 

amount of the proposed penalties will be resolved in the civil penalty proceeding." 

In Energy Fuels Corp., I FMSHRC 299(May1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

29FMSHRC 34 
contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even ifhe were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings-that involve similar issues"). · 

29FMSHRC35 
The judge's order does not explain why the initiation of the civil penalty proceeding 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceeding. 1 

~ Michael~ \ ~ 

1 Presently pending before the Commission on review is Maifork Coal Co., Docket Nos. 

WEV A 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Maifork remains open notwithstanding our disposition of the instant cases. 

29 FMSHRC 36 
Distribution 

Donna C. Kelly, Esq. 

Dinsmore & Shohl, LLP 

P.O. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

Ronald Gurka, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2~nd Floor West 

Arlington, VA.22209-2247 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29 FMSHRC 37 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MJNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

Docket Nos. WEVA 2006-527-R 

WEV A 2006-528-R 

WEV A 2006-529-R 

WEV A 2006-530-R 

WEV A 2d06-53J-R 

WEV A 2006-560-R 

SPARTAN MINING COMPANY, JNC. 

. WEVA 2006-561-R 

WEV A 2006-562-R 

. WEV A 2006-563-R 

WEV A 2006-564-R 

WEV A 2006-565-R 

WEV A 2006-566-R 

WEV A 2006-567-R 

WEV A 2006-568-R 

WEV A 2006-569-R 

WEV A 2006-577-R 

WEV A 2006-578-R 

WEV A 2006-579-R 

WEV A 2006-580-R 

WEVA 2006-581-R 

WEV A 2006-582-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), involve Notices of Contest filed by Spartan 

Mining Company, Inc. ("Spartan") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). 

The Secretary of Labor issued proposed civil penalties for the citations being contested, Spartan 

contested those penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the 

Secretary has filed petitions for assessment of the penalties in Commission Docket Nos. WEV A 

29FMSHRC38 
2006-851 and WEVA 2006-852. Consequently, in a sua sponte Order issued December 21, 

2006, the judge dismissed the contest cases without prejudice, because"[ a]ll issues related to the 

alleged violations and the amount of the proposed penalties will be resolved in the civil penalty 

proceedings." 

In Energy Fuels Corp., 1FMSHRC299(May1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued ·before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even if he were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC 39 
·· The judge's order does not explain why the initiation of the civil penalty proceedings 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceedings. 1 

1 Presently pending before the Commission on review is Marfork Coal Co., Docket Nos. 

WEV A 2006~ 788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Maifork remains open notwithstanding our disposition of the instant cases. 

29FMSHRC40 
Distribution 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P.O. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

Peter Silvain, Jr., Esq. 

Keith E.. Bell, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Richard D. Hosch 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA 

100 Bluestone Road 

Mt. Hope, WV 25880-1000 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC41 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

SPARTAN MINING COMPANY, INC. 

Docket Nos. WEV A 2006-556-R 

WEV A 2006-557-R 

WEV A 2006-558-R 

WEV A 2006-559-R 

WEV A 2006-573-R 

WEV A 2006-574-R 

WEV A 2006-575-R 

WEV A 2006-576-R 

WEV A 2006-583-R 

WEV A 2006-584-R 

WEV A 2006-585-R 

WEV A 2006-586-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

These proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act''), involve Notices of Contest filed by Spartan 

Mining Company, Inc. ("Spartan") pursuant to section 105(d) of the Act, 30 U.S.C. § 815(d). 

The Secretary of Labor issued proposed civil penalties for the citations being contested, Spartan 

contested those penalties pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and the 

Secretary has filed petitions for assessment of the penalties in Commission Docket Nos. WEV A 

2006-867 and WEVA 2006-973. Consequently, in a sua sponte Order issued December 21, 

2006, the judge dismissed the contest cases without prejudice, because "[a ]II issues related to the 

alleged violations and the amount of the proposed penalties will be resolved in the civil penalty 

proceedings." 

In Energy Fuels Corp., I FMSHRC 299 (May 1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

29FMSHRC42 
operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even if he were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed, contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC43 
The judge's order does not explain why the initiation of the civil penalty proceedings 

should result in the dismissal of the contest proceedings, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs these cases for review on a question of law and Commission policy, and 

summarily vacates the judge's order and remands the cases for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, he should provide a rationale 

explaining why he chose to dismiss the cases instead of consolidating them with the penalty 

proceedings. 1 

1 Presently pending before the Commission on review is Marfork Coal Co., Docket Nos. 

WEVA 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Maifork remains open notwithstanding our disposition of the instant cases. 

29FMSHRC44 
Distribution 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P.O. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

Peter B. Silvain, Jr., Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Richard D. Hosch 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA 

100 Bluestone Road 

Mt. Hope, WV 25880-1000 

Administrative Law Judge Michael Zielinski 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC45 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MAMMOTH COAL COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2007 

Docket No. WEY A 2006-759-R 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

DIRECTION FOR REVIEW AND DECISION 

BY THE COMMISSION: 

This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2000) (''Mine Act" or "Act"), involves a Notice of Contest filed by 

Mammoth Coal Company ("Mammoth") pursuant to section 105(d) of the Act, 30 U.S.C. 

§ 815(d). The Secretary of Labor issued a proposed civil penalty for the citation being contested, 

Mammoth contested that penalty pursuant to section 105(a) of the Act, 30 U.S.C. § 815(a), and 

the Secretary has filed a petition for assessment of the penalty in Commission Docket No. 

WEVA 2006-971. Consequently, in a sua sponte Order issued December 29, 2006, the judge 

dismissed the contest case without prejudice, because "[a]ll issues related to the alleged violation 

and the amount of the proposed penalty will be resolved in the civil penalty proceeding." 

In Energy Fuels Corp., 1 FMSHRC 299 (May 1979), the Commission stated: 

Inasmuch as a citation and related withdrawal orders may 

be issued before the Secretary has proposed a penalty, the 

operator's interest in immediately contesting the allegation of 

violation and the special findings in a citation may be considerable. 

As we have said, affording the operators this opportunity will not 

adversely affect the interests of miners. The Secretary has not 

convinced us that the interest in avoiding piecemeal litigation 

necessarily outweighs the interests of the operators, for we think 

that the Commission both could allow operators to immediately 

29FMSHRC46 
contest all parts of citations, and largely accommodate the interest 

cited by the Secretary. If the citation lacked special findings, and 

the operator otherwise lacked a need for an immediate hearing, we 

would expect him to postpone his contest of the entire citation until 

a penalty is proposed. Even ifhe were to immediately contest all 

of a citation but lacked an urgent need for a hearing, we see no 

reason why the contest of the citation could not be placed on the 

Commission's docket but simply continued until the penalty is 

proposed~ contested, and ripe for hearing. The two contests could 

then be easily consolidated for hearing upon motion of a party or 

the Commission's or the administrative law judge's own motion. 

Id. at 308 (emphasis added); see also Commission Procedural Rule 12, 29 C.F.R. § 2700.12 

("The Commission and its judges may at any time, upon their own motion or a party's motion, 

order the consolidation of proceedings that involve similar issues"). 

29FMSHRC47 
The judge's order does not explain why the initiation of the civil penalty proceeding 

should result in the dismissal of the contest proceeding, as opposed to the consolidation of the 

contest and civil penalty proceedings, a procedure set forth in Energy Fuels. Accordingly, the 

Commission directs this case for review on a question oflaw and Commission policy, and 

summarily vacates the judge's order and remands the case for further proceedings. See The 

Anaconda Co., 3 FMSHRC 299, 301-02 (Feb. 1981) (remanding for failure to provide supporting 

reasons). If on remand the judge elects to dismiss this matter, she should provide a rationale 

explaining why she chose to dismiss the case instead of consolidating it with the penalty 

proceeding. 1 

1 Presently pending before the Commission on review is Marfork Coal Co., Docket Nos. 

WEY A 2006-788-R, etc., which presents the issue of whether the judge properly dismissed 

contest proceedings prior to the issuance of proposed civil penalties. The issue presented in 

Marfork remains open notwithstanding our disposition of the instant case. 

29FMSHRC48 
Distribution 

Carol Ann Marunich, Jr., Esq. 

Dinsmore & Shohl, LLP 

2604 Cranberry Square 

Morgantown, WV 26508 

Richard D. Hosch 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA 

100 Bluestone Road 

Mt. Hope, WV 25880-1000 

Administrative Law Judge Jacqueline R. Bulluck 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2_021 

29FMSHRC49 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

- ADMINISTRATION (MSHA) 

v. 

UNITED TACONITE LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 26, 2007 

Docket No. LAKE 2007-32-M 

A.C. No. 21-03404-85669 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ( .. Mine Act"). On December 19, 2006, the Commission received from 

United Taconite LLC ("United") a motion by counsel 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). 

On April 25, 2006, United received from the Department of Labor's Mine Safety and 

Health Administration ("MSHA") a proposed penalty assessment for 76 citations and orders. 

United states that it intended to send in the assessment sheet to contest certain of the citations and 

orders for which penalties had been proposed, but did not because of a misunderstanding as to 

which United official would do so. The Secretary notes that MSHA had alerted United to the 

delinquency by letter dated July 14, 2006, but she does not oppose United' s request to reopen the 

penalty assessment. 

29FMSHRC50 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

reopen final section 105(a) orders, the Cornm1ssion 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 inadvertence or mistake. 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). 

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

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

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

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

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

29FMSHRC 51 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 52 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION .. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 26, 2007 

Docket No; SE 2007-130 

A.C. No. 01-01247-095619 

JIM WALTER RESOURCES, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 11, 2007, the Commission received from Jim 

Walter Resources, Inc. ("JWR") a motion made by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

On April 25, 2006, the Department of Labor's Mine Safety and Health Administration 

issued Citation No. 7689102 to JWR. JWR states that it intended to contest the citation, but 

misfiled it. According to JWR, this filing error led it to inadvertently pay the penalty later 

assessed for the citation. The Secretary states that she does not oppose JWR's request to reopen 

the penalty assessment. 

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

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

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

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

29FMSHRC 53 
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 inadvertence or mistake. 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"); .!WR, 15 FMSHRC at 787. We have also observed that default is a 

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

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

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

Having reviewed JWR's motion, in the interests of justice, we remand this matter to the 

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

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

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

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

29FMSHRC54 
Distribution 

GuyW. Hensley, Esq. 

Jim Walter Resources, fuc. 

P.O. Box 133 

Brookwood, AL 35444 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-4021 

29FMSHRC 55 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 26, 2007 

Docket No. WEVA 2007-201 

A.C. No. 46-01816-95764 

PINNACLE MINING COMPANY, LLC 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 1, 2006, the Commission received from 

Pinnacle Mining Company, LLC ("Pinnacle") a motion made by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On April 3, 2006, the Department of Labor's Mine Safety and Health Administration 

issued Citation No. 3749381 to Pinnacle. Pinnacle contested that citation in Docket No. WEVA 

2006-411-R, and the case was subsequently stayed pending assessment of a penalty. 

Upon receipt of the penalty assessment for the citation, however, Pinnacle paid the 

assessment. Counsel for the Secretary in the contest proceeding notified the judge in that case 

and Pinnacle of the payment by letter dated October 26, 2006, but Pinnacle did not respond. 

Consequently, on November 20, 2006, the judge lifted the stay and dismissed the contest 

proceeding. In its motion to reopen the penalty proceeding, Pinnacle states that payment of the 

penalty was inadvertent and that it meant to contest the penalty assessment along with the 

29FMSHRC 56 
underlying citation. The motion is accompanied by an affidavit of Pinnacle's Safety Director, 

who states that he "inadvertently paid" the proposed penalty fot the citation in question. 

In her response to the motion to reopen, the Secretary states that Pinnacle's statement that 

the civil penalty proceeding should be reopened because payment of the penalty was inadvertent 

is only a conclusory statement that provides no explanation as to why its failure to contest the 

penalty proceeding should be excused. The Secretary requests that the Commission direct 

Pinnacle to provide a detailed explanation of the basis for its motion to reopen and states that, 

upon receipt of that explanation, the Secretary will take a position on Pinnacle's motion to 

reopen. 

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

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

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("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 ofinadvertence ormistake. 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). 

Having reviewed Pinnacle's motion and the Secretary's response thereto, in the interests 

of justice, we remand this matter.to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Pinnacle's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. The issues raised by the Secretary involve 

fact finding that is the province of an administrative law judge in the first instance. 

Consequently, the judge to whom this case is assigned should consider the Secretary's response. 

If the judge eventually determines that reopening is warranted, this case shall proceed pursuant to 

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

29FMSHRC 57 
Distribution 

Robert H. Beatty, Jr., Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health ReView Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 58 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 26, 2007 

. Docket No. WEVA 2007-233 

A.C. No. 46-01456-85356 

EASTERN ASSOCIATED COAL, LLC 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 11, 2007, the Commission received from Eastern 

Associated Coal, LLC ("Eastern") a motion from its counsel requesting to reopen a penalty 

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

Mine Act, 30 U;S.C. § 815(a). The Commission had denied, without prejudice, an earlier request 

from Eastern to reopen the penalty assessment, on the grounds that Eastern's motion did not 

explain the company's failure to contest the proposed assessment. Eastern Assoc. Coal, LLC, 28 

FMSHRC 999, 1000 (Dec. 2006). 

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

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

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

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

On March 9, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued three citations to Eastern. Eastern contested those citations, and that 

proceeding was stayed by the assigned judge. MSHA subsequently sent Eastern a proposed 

penalty assessment relating to the citations. Eastern now explains that it paid the penalties 

assessed due to an error on the part of its corporate office, which was unaware that the penalty 

assessment was related to citations that had previously been contested. The Secretary states that 

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

29FMSHRC 59 
We have held that in .appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

the basis of inadvertence or mistake. See 29 C.F .R § 2700.1 (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. 

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

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

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

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

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

29FMSHRC60 
Distribution 

Rebecca J. Oblak, Esq. 

Bowles, Rice, McDavid, Graff & Love, LLP 

7000 Hampton Center, Suite K 

Morgantown, WV 26505 

W. Christian Schumann,_ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative· Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

29FMSHRC 61 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 1, 2007 

Docket No. WEST 2007-134-M 

A.C. No. 10-02063-77188 

Docket No. WEST 2007-135-M 

A.C. No. 10-02063-87813 

GRANGEVILLE TRANSIT MIX, INC. Docket No. WEST 2007-136-M 

A.C. No. 10-02063-93037 

Docket No. WEST 2007-137-M 

A.C. No. 10-02063-95511 . 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. {2000) {"Mine Act"). 1 On December 14, 2006, the Commission received a letter 

from Grangeville Transit Mix, Inc. {"Grangeville") requesting that the Commission reopen four 

penalty assessments that had become final orders of the Commission pursuant to section 105{ a) 

of the Mine Act, 30 U.S.C. § 815{a). 

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

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

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

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

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

consolidate docket numbers WEST 2007-134-M, WEST 2007-135-M, WEST 2007-136-M, and 

WEST 2007-137-M, all captioned Grangeville Transit Mix, Inc., and all involving similar 

procedural issues. 29 C.F.R. § 2700.12. 

29FMSHRC 62 
Between January 2006 and August 2006, the Department of Labor's Mine Safety and 

Health Administration ("MSHA") sent four separate proposed penalty assessments to the 

operator. None of the proposed assessments was timely contested. Each of the assessments 

therefore became a final Commission order. 

Grangeville's original letter of December 14, 2006, attached only one of the four 

assessments that had become final Commission orders, and with respect to that assessment (A.C. 

No. 10-02063-95511), Grangeville stated it had tried to timely contest the assessment, but had 

sent the contest form to the wrong address. The Secretary responded to the letter by stating that, 

while she did not oppose reopening of that assessment, she could not take a position on the 

reopening of the other three assessments until Grangeville explained why it believes reopening of 

those three assessments is also warranted. 

Grangeville subsequently submitted a second letter, dated January 14, 2007, stating that 

its foreman did not receive some ofthecitations and proposed penalties at issue in the four 

assessments, and that it misunderstood the MSHA enforcement procedures in this instance. In 

response, the Secretary now states that she does not oppose Grangeville's request to reopen all 

four penalty assessments. _ 

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

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

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

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

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

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700.1 (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). 

29FMSHRC63 
Having reviewed Grangeville's request, in the interests of justice, we remand these 

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

for Grangeville' s failure to timely contest the penalty proposals and whether relief from the final 

orders should be granted. If it is determined that such relief is appropriate, these cases shall 

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

Mic 

29FMSHRC64 
Distribution 

Mr. Max Nuxoll 

Grangeville Transit Mix 

P.O. Box 175 

Grangeville, ID 83530 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29FMSHRC 65 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WOLF RUN MINING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 12, 2007 

Docket No. WEVA 2007-238 

A.C. No. 46-08791-95201 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 23, 2007, the Commission received from Wolf 

Run Mining Company ("Wolf Run") a motion by counsel 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). 

The Department of Labor's Mine Safety and Health Administration ("MSHA") sent Wolf 

Run a proposed penalty assessment, dated August 9, 2006, for eight citations and orders. Wolf 

Run states that it timely paid the six penalties on the assessment that it was not contesting, 

indicated on the assessment form that it was contesting the other two penalties, and forwarded 

the form along with the payment to the MSHA office designated to receive payment of penalties. 

However, the form indicating the intent to contest penalties should have been sent to a different 

MSHA office than the one to which penalty payments are sent. The Secretary states that she does 

not oppose WolfRun's request to reopen the assessment for the two penalties that Wolf Run 

intended to contest. 

29 FMSHRC 66 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In 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 inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

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

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

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

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

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

Run' s failure to timely contest the penalty proposals and whether relief from the final order 

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

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

29FMSHRC67 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29FMSHRC 68 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

. ADMJNISTRA TION (MSHA) 

v. 

WOLF RUN MINING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 12, 2007 

Docket No. WEVA 2007-239 

A.C. No. 46-08791-100397 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 23, 2007, the Commission received from Wolf 

Run Mining Company ("Wolf Run") a motion by counsel 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). 

The Department of Labor's Mine Safety and Health Administration sent WolfRun a 

proposed penalty assessment, dated October 11, 2006, for 25 citations. Wolf Run states that it 

intended to pay 20 of the penalties and timely contest the other five, but because of inadvertence 

and miscommunication with its accounting office, it failed to contest the five penalties. The 

Secretary states that she does not oppose WolfRun's request to reopen the assessment for the 

five penalties that Wolf Run intended to contest. 

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

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

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

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

29 FMSHRC .69 
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 inadvertence or mistake. 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). 

Having reviewed WolfRun's request, in the interests of justice, we remand this niatter to 

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

Run' s failure to timely contest the penalty proposals and whether relief from the final order 

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

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

29FMSHRC70 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schmnann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29FMSHRC 71 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ICG, EASTERN, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 12, 2007 

Docket No. WEVA 2007~240 

A.C. No. 46-07945-100164 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 23, 2007, the Commission received from ICG, 

Eastern, LLC ("ICG") a motion made by counsel to reopen a penalty assessment that had become 

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

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

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

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

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

On March 15, 2006, the Department of Labor's Mine Safety and Health Administration 

issued Citation Nos. 724791, 7247092, and 7247093 to ICG. ICG contested all three citations in 

Docket Nos. WEVA 2006-316-R, WEVA 2006-317-R, and WEVA 2006-318-R, and those 

proceedings were subsequently stayed pending assessment of penalties. On October 10, 2006, 

MSHA assessed penalties for the three citations. 

After receiving that penalty assessment, however, ICG failed to contest the assessment for 

any of the penalties proposed. In its motion to reopen the penalty proceeding, ICG states that its 

failure to contest the penalties was inadvertent, as the ICG official who received the assessment 

was apparently unsuccessful in forwarding the assessment to ICG's outside counsel in the contest 

29FMSHRC 72 
cases. The Secretary states that she does not oppose ICG' s request to reopen the penalty 

assessment. 

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

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

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). 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 inadvertence or mistake. 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, ifthe defaulting party can make a showing of good cause for a failure to 

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

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

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

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

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

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

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

29FMSHRC73 
Distribution 

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East 

P.O. Box 273 

Charleston, WV 25321 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

29FMSHRC74 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

Office of Administrative Law Judges 

601 New Jersey Avenue N.w., Suite 9500 

Washington, D.C. 20001 

January 4, 2007 

ARACOMA COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. 

Docket No. WEVA 2007-2-R 

Citation No. 7259833; 09/26/2006 

Docket No. WEVA 2007-3-R 

Citation No. 7259836; 09/26/2006 

Aracoma Alma Mine # 1 

Mine ID 46-08801 

Docket No. WEVA 2007-8-R 

Citation No. 7241546; 09/18/2006 

Docket No. WEV A 2006-9-R 

Citation No. 7244581; 0910712006 

Hemshaw Mine 

Mine ID 46-08802 

Docket No. WEVA 2007-50-R 

Citation No. 7259837; 09/27/2006 

Docket No. WEVA 2007-5r-R 

Citation No. 7259838; 09/27/2006 

Docket No. WEV A 2007-52-R 

Citation No. 7259839; 09/27/2006 

Docket No. WEV A 2007-53-R 

Citation No. 7259840; 09/27/2006 

Docket No. WEV A 2007-54-R 

Citation No. 7259841; 09/27/2006 

Docket No. WEV A 2007-55-R 

Citation No. 7259842; 09/27/2006 

Docket No. WEV A 2007-56-R 

Citation No. 7259843; 0912712006 

29FMSHRC 75 
SECRETARY OFLABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

Docket No. WEV A 2007-57-R 

Citation No. 7259844; 09/27 /2006 

Docket No. WEV A 2007-58:-R 

Citation No. 7259846; 09/28/2006 

Docket No. WEV A 2007-46-R 

Citation No. 3999565; 09/13/2006 

Docket No. WEV A 2007-66-R 

Citation No. 7259847; 10/10/2006 

Docket No. WEV A 2007-67-R 

Citation No. 7259848; 10/10/2006 

Docket No. WEV A 2007-68-R 

Citation No. 7259849; 10/10/2006 

Docket No. WEV A 2007-69-R 

Citation No. 7259850; 10/10/ 2006 

Docket No. WEV A 2007-70-R 

Citation No. 7259853; 10/11/2006 

Docket No. WEV A 2007-71-R 

Citation No. 7259854; 10/10/2006 

Docket No. WEV A 2007-72-R 

Citation No. 7259855; 10/10/ 2006 

Docket No. WEVA 2007-73-R 

Citation No. 7259856; 10/12/2006 

Docket No. WEV A 2007-74-R 

Citation No. 7259857; 10/12/2006 

Docket No. WEVA 2007-75-R 

Citation No. 7259858; 10/12/2006 

Docket No. WEV A 2007-76-R 

Citation No. 7259859; 10/15/2006 

29FMSHRC 76 
Before: Judge Hodgdon 

Docket No. WEV A 2007-77-R 

Citation No. 7259860; 10/15/2006 

Docket No. WEVA 2007-78-R 

Citation No. 7259861; 10/15/2006 

Aracoma Alma Mine # 1 

Mine ID 46-08801 

Docket No. WEVA 2007-167-R 

Citation No. 7261885; 10/23/2006 

Docket No. WEVA 2007-168-R 

Citation No. 7261886; 10/23/2006 

Docket No. WEVA 2007-169-R 

Citation No. 7261887; 10/24/2006 

. Docket No. WEVA2007-170-R 

Citation No. 7261888; 10/24/2006 

DocketNo. WEVA 2007-171--R 

Citation No, 7261889; 10/25/2006 

Docket No. WEVA2007-172-R 

Citation No. 7261890; 10/30/2006 

DocketNo. WEVA 2007-173-R 

Citation No. 7261891; 10/30/2006 

Docket No. WEVA 2007-174-R 

Citation No. 7261892; 10/31/2006 

Docket No. WEVA 2007-175-R 

Citation No. 7261893; 10/31/2006 

Hemshaw Mine 

Mine ID 46-08802 

DISMISSAL ORDER 

29FMSHRC 77 
These 36 cases are before me on Notices of Contest pursuant to Section 105( d) of the 

Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d). The Secretary, by 

counsel, has filed motions to stay the cases pending assessment of civil penalties on the contested 

citations so that the contest and civil penalty proceedings can be consolidated for hearing. The 

motions state that the Contestant does not object to them. 

Because the Commission has been inundated with notices of contest in which the 

contestant immediately acquiesces in the proceedings being stayed, some of the Commission 

judges issued orders to show cause requesting the Contestant to show cause why the contests 

should not be dismissed. See, e.g., Spartan Mining Co., 28 FMSHRC 768 (Aug. 2006) (ALJ); 

Aracoma Coal Co, Inc., 28 FMSHRC 763 (Aug. 2006) (ALJ); Marfork Coal Co., Inc., 28 

FMSHRC 745 (Aug. 2006) (ALJ). The Contestants' responses were that the Act permits it. See, 

e.g., Spartan Mining Co., 28 FMSHRC 892 (Sept. 2006) (ALJ). The Secretary, while asserting 

"that such 'pre-penalty' notices of contest are not an appropriate or reasonable use of the 

litigation process unless the contestant has an urgent or specific need for a hearing on the 

underlying violation," agreed. Id. 

Certainly, section 105( d), which permits filing a notice of contest within 30 days of 

receipt of a citation or an order, does not state that filing a notice of contest even though the party 

does not desire a hearing is prohibited. Early in its existence, the Commission held that when a 

party had an interest in "immediately'' challenging an allegation, filing a notice of contest was 

proper. Energy Fuels Corp., 1 FMSHRC 299, 308 (May 1979). It also opined that if the party 

lacked an urgent need for a hearing, the contest proceeding could be continued to be tried with 

the penalty proceeding. (Id.) It went on to state, however, that if there were no need for an 

immediate hearing, "we would expect [the operator] to postpone his contest of the entire citation 

until a penalty is proposed." (Id.) 

However, neither Congress; in drafting section 105( d), nor the Commission, in Energy 

Fuels, could have anticipated the current routine filing of literally hundreds of notices of contest 

when the operator has no interest in an immediate hearing. Such filings unnecessarily clog up 

the system. Unlike the Secretary, I am not of the opinion that the Commission is without 

recourse to remedy this abuse of its processes. 

As the Commission noted in Energy Fuels, the purpose of permitting the filing of a notice 

of contest is to allow an operator an expeditious hearing on an order or citation without waiting 

for the penalty to be assessed. fu these cases, however, the contestant never desired an 

immediate hearing since in every case it routinely and without delay agreed to having the 

proceedings stayed until the civil penalty was assessed. 

"Abuse of process" is "generally defined as the misuse of a legal process ... against 

another primarily to accomplish a purpose for which the process is not designed." 1 Am. Jur. 2d 

Abuse of Process§ 1 (1994). While this is the definition of the tort of"abuse of process" and the 

filing of these notices of contest obviously does not rise to that level, they do involve the misuse 

29FMSHRC 78 
of a legal process for a purpose for which it was not designed. And they clearly require the 

Secretary to respond to them and the Commission to deal with them for no apparent purpose 

whatsoever. 

Dismissing these contests will not deny the Contestant due process. Due process would 

only be denied if the dismissing them would result in the Contestant having no chance for a 

hearing on the order or citation. The failure to file a notice of contest does not preclude an 

operator from challenging, in a penalty proceeding, the fact of violation or any special findings 

contained in the citation or order. 29 C~F.R. § 2700.21; Quin/and Coals, Inc., 9 FMSHRC 1614, 

1621 (Sept. 1987). Similarly, dismissing these contests will not preclude the Contestant from 

challenging the orders or citations in a penalty proceeding. fudeed, the end result of the 

Contestant's actions in these matters is exactly that, waiting until the penalty proceeding is filed 

to hear the cases. It just involves extensive and ultimately unnecessary actions in the interim. 

I am not issuing an order to show cause in these cases because Aracoma has already had 

an opportunity to offer its justifications for filing such contests in another proceeding. Aracoma 

Coal Co., Inc., 28 FMSHRC _(Nov. 2006). Like Judge Feldman, I find the Contestant's 

reasons without merit. 

Accordingly, these contest proceedings are DISMISSED. 

Distribution: 

~.H)i4,J.. T. Todd Ho~;lr:',..._ Administrative Law Judge 

David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 

273, Charleston, WV 25321 

Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22"d Floor West, Arlington, VA 22209-2247 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273, 

Charleston, WV 25321 

29FMSHRC 79 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HIGHLAND MINING COMP ANY, 

Respondent 

Washington, DC 20001-2021 

January 8, 2007 

CNIL PENALTY PROCEEDING 

Docket No. KENT 2006-102 

A.C. No. 15-02709-71962 

Highland 9 Mine 

DECISION 

Appearances: Neil Morholt, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for the Petitioner; 

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

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor ("The Secretary''), alleging that Highland Mining Company, LLC 

("Highland") violated 30 C.F.R. § 70. lOO(a). Pursuant to notice, the matter was heard in 

Evansville, Indiana on September 6; 2006. Subsequent to the hearing, each party filed a posthearing brief, and Highland filed a reply brief 

Violation of Section 70.lOO(a), supra 

Highland operates an underground coal mine. On July 28, 2005, MSHA Inspector, 

Hubert Eugene Wright, issued Highland a citation alleging a violation of 30 C.F.R. § 70;100(a). 1 

The citation was based on results of a respirable dust sampling conducted by MSHA of five 

occupations in the 063-0 MMU unit. These indicated an average concentration of respirable dust 

of2.472 milligrams per cubic meter (mg/m3). Highland does not contest these facts or its 

violation of Section 70. lOO(a), supra. Nor does Highland contest the designation of the violation 

as significant and substantial. I thus find that Highland violated Section 70.IOO(a), supra, and 

that accordingly the violation was significant and substantial. Consolidation Coal Co., 8 

FMSHRC 890 (1986) 

1

Section 70.lOO(a), supra, provides as follows: "Each operator shall continuously maintain the 

average concentration ofrespirable dust in the mine atmosphere during each shift to which each 

miner in the active workings of each mine is exposed at or below 2.0 milligrams of respirable 

dust per cubic meter of air .... " 

29FMSHRC 80 
Penalty 

The parties stipulated that Highland is a large operator, that the cited condition was 

abated "within a reasonable time", and that the proposed penalty "will not affect Highland's 

ability to remain in business." I accept the parties' stipulations, and so find. 

There is not any factual issue with regard to Highland's assessed violation history for the 

immediate two year period prior to July 27, 2005. The history indicates a total number of 1022 

violations of which 425 were indicated to be significant and substantial. I find that there is not 

any basis in the record to either significantly increase or decrease the assessment of a penalty 

based upon Highland's history of violations. 

Negligence 

Stipulated Facts 

On July 7, 2004, Highland received a citation for the MMU 063-0 unit for a violation of 

Section 70. IOO(a), supra, based on MSHA sampling taken on June 28, 2004, which indicated 

that an average of2.216 mg/m3 ofrespirable dust. As a result of the issuance of the citation, 

Highland submitted a revision to its dust control portion of the ventilation plan which was 

approvedbyMSHA on July 15, 2004. On September 20, a furtherrevision was approved by 

MSHA. 

Between November 30, 2004 and December 2, 2004, dust concentration samples taken by 

Highland averaged 2.303 mg/m3 ofrespirable dust. On December 13, 2004, Highland received a 

citation for the MMU 063-0 unit alleging a violation of Section 70~100(a), supra. On January 14, 

2005, as a result of the issuance of the citation, Highland submitted a revised ventilation and dust 

control plan which was subsequently approved by MSHA on January 27, 2005. A more 

complete plan which incorporated these revisions was approved on May 23, 2005. 

Between December 13, 2004 and July 18, 2005, on three occasions, Highland sampled 

the continuous miner operator, 2 and MSHA sampled five occupations in the MMU 063-0 unit. 

The average dust concentration for these samples was below the level considered by MSHA to 

constitute a violation of Section 70.lOO(a), supra. 

Additional Facts and Discussion 

In analyzing whether Highland was negligent, a key issue is whether, prior to the issuance 

2

30 C.F.R. § 70.207(d)(2), requires an operator to sample the designated occupation 036 

(continuous miner operator) on a bi-monthly basis because that is the occupation expected to 

have the greatest dust exposure. 

29FMSHRC 81 
of the citation at bar,3 Highland had notice or knowledge that it had a dust problem on the MMU 

063-0 unit. fu this connection, I note Highland's history of dust violations on the unit at issue. 

Highland was cited on July 7, 2004, based on sampling which indicated an average dust 

concentration of2.216 mg/3; three occupations were exposed to more than 2.0 mg/m3. Highland 

was cited again on Decemberl3, 2004, based on its sampling which indicated an average dust 

concentration of2.303 mg/m3. Additionally, six out of fifteen ofHighland's sampling results 

between January 2005 and May 2005; and more than thirty percent of the results ofMSHA's 

sampling, were in excess of 2.0 mg/m3.4 

Robert Smith, an MSHA Health fuspector and Health Supervisor, opined that the 

violation on July 28, 2005, constituted high negligence as Highland" ... was in a state of 

heightened awareness from prior violations, discussions and meetings .... "(Tr. 113) Smith 

explained his opinion as follows: "We've shared the existence of [government review] programs, 

how they work, and the importance of maintaining all exposures below the applicable standard, 

which in most instances is 2 milligrams, ... ".(Tr. 114). 

Highland's No. 9 Mine Safety and Training Manager, James Allen, who oversees its dust 

compliance efforts, agreed that three citations for respirable dust sampling violations in the same 

unit would be a cause for concern. However, although Highland's dust sampling between March 

29, 2005 and March 31, 2005, indicated dust concentrations of 2.02 mg/3, Highland did not make 

any changes in its plan. Nor did Highland change its plan after its sampling indicated dust 

concentration levels of 1.93 mg/m3. Allen explained that ''what probably happened" was that 

Highland" ... would've got with our maintenance department, showed them these results, just 

wanted them to ensure us that our scrubber system was :functioning as it should've, maybe look 

at our duct work. And also we would've gotten our section foreman, sat down and reviewed our 

samples, and we do this with them regularly, and showed them the concentrations of the samples 

that they run and instructed them to have got with their miner operators; let them know what their 

concentrations were and just reinforced dust parameter compliance." (Tr. 156) (emphasis 

added). Not much weight was accorded this testimony inasmuch as Allen did not testify based 

upon personal knowledge, what if anything Highland actually did in response to the May 2005, 

test results of 1.93 mg/m3, but rather what "probably happened" or what they ''would've" done. 

(Id.) 

On the other hand, in mitigation of Highland's negligence, the record indicates that after 

Highland was found to not be in compliance on December 13, 2004, it revised its dust plan, 

which was approved by MSHA. In this connection, Smith conceded on cross-examination that it 

3

July 28, 2005 

4

In sampling done by Highland in the March 2005 cycle the average exposure was 2.02 mg/m3. 

In testing by Highland 4i :the May, 2005 cycle, three out of the five samples were above the 

standard, and the average dust concentration was 1.93 mg/m3. 

29FMSHRC 82 
was believed that the revision contained sufficient changes to result in compliance. In May, 

2005, a subsequent plan was approved by MSHA, and Smith agreed that it was subject to the 

belief that the parameters of the plan would keep Highland in compliance. Also, according to 

Allen, after Highland became aware of the May 2005 sampling result of 1.93 mg/m3, it provided 

additional training and "put forth" additional maintenance efforts. (Tr. 158) It is significant that, 

according to Wright when he cited Highland on July 19, the latter was in compliance with all of 

the parameters of its plan. Wright indicated that he could not determine what caused Highland to 

be in violation on July 19. Further, according to Wright, all the sampling that he did on other 

sections of the mine on July 12, 13 resulted in average dust concentration levels that conformed 

with the requirements of Section 77. lOO(a), supra. 

Within the above context, and considering all the mitigating factors, I conclude that the 

level of Highland's negligence was moderate. 

Gravity 

Highland asserts that the Secretary has the burden of establishing the gravity of the 

violation. Highland argues that the Secretary failed to establish the number of people exposed to 

the cited condition. Highland alleges that this is an element to be considered regarding the 

gravity of the violation, citing 30 C.F.R. § 100.3(d). However, Section 100.3, supra, sets forth 

the criteria to be considered by the Secretary in assessing a penalty. In contrast, assessment of 

penalties by the Commission is governed by Section 11 O(i) of the Act, and is a de novo 

determination. (See, Youghiogheny & Ohio Coal Co., ("Y & O"), 9 FMSHRC 673, 678 (April 

1987). 

In Y & 0, supra, at 678-679, the Commission elaborated as follows: 

We have consistently rejected assertions that, in serving our 

separate and distinct function of assessing appropriate penalties 

based on a record developed in adjudicatory proceedings before the 

Commission, we are bound by the Secretary's regulations, which 

are intended to assist him in proposing appropriate penalties. See, 

~. Sellersberg Stone Co., 5 FMSHRC 287 (March 1983), affd, 

737 F.2d 1147 (71h Cir. 1984); Black Diamond Coal Mining Co., 7 

FMSHRC 1117 (August 1976); U.S. Steel Mining Co., 6 

FMSHRC 1148 (May 1984). 

In executing its responsibility of assessing a penalty, the Commission is required to 

consider six specific criteria, including gravity. Section 11 O(i) of the Mine Act; see also, 

Sellersburg Stone Co. 5 FMSHRC 287, 291-92 (March 1983), ajf'd, 737 F.2d 1147, 1152 (7th 

Cir. 1984). "The gravity penalty criterion under section 11 O(i) of the Mine Act, 30 USC § 820(i), 

is often viewed in terms of the seriousness of the violation." Consolidation Coal Company, 18 

FMSHRC 1541, 1549 (1996). In this connection, I note that in Consolidation Coal Company, 8 

29FMSHRC 83 
FMSHRC 890,·898-899 (1986) the Commission, held that if a violation of Section 70.lOO(a), 

supra, has been established, a presumption that the violation is significant and substantial is 

appropriate.5 The Commission elaborated in its holding by stating that any exposure above 2.0 

mg/m3 creates a measure of danger to health, and a presumption arises that there was a 

reasonable likelihood that this health hazard will result in an illness. (Id.) The Commission set 

forth its rationale as follows: 

We recognize that the development and progress of respiratory 

disease is due to the cumulative dosage of dust a miner inhales, 

which in turn depends upon the concentration and duration of each 

exposure, and that proof of a single incident of overexposure does 

not, in and of itself, conclusively establish a reasonable likelihood 

that respirable disease will result. There is no dispute, however, 

that overexposure to respirable dust can result in chronic bronchitis 

and pneumoconiosis. The effects of the health hazards associated 

with overexposure to respirable dust usually do not cause 

immediate symptoms- as noted, simple pneumoconiosis is 

asymptomatic*** Consolidation Coal, supra, at 898. 

Based on the rationale set forth in Consolidation, supra, I find that the violation of 

Section 70.lOO(a), supra, established herein was serious, and hence of a high level of gravity. 

Conclusion 

Based on the factors set forth in Section l lO(i) of the Act as discussed above, I find that a 

penalty of$5,000 is appropriate for the violation of Section 70.lOO(a), supra. 

5

The Commission held that this presumption " . . . may be rebutted by the operator by 

establishing that miners in the designated occupation in fact were not exposed to the hazard 

posed by the excessive concentration of respirable dust e.g., through the use of personal 

protection equipment." (Consolidation, supra at 899). In the case at bar, I note that the Highland 

not adduce any such facts, and thus did not rebut the presumption. 

29FMSHRC 84 
Order 

It is Ordered that Highland pay a total civil penalty of $5,000 within 30 days of this 

decision. 

A~i~. Administrative Law Judge 

Distribution: 

Neil A. Morholt, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 

1340, Pittsburgh, Pennsylvania 15222 

/lp 

29FMSHRC85 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, D.C. 20001-2021 

Telephone No.: (202) 434-9958 

Fax No.: (202) 434-9949 

January 11, 2007 

RS & W COAL COMP ANY, INC., 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

Mine Safety and Health 

Administration, MSHA 

Respondent. 

Docket No. PENN 2007-106-R 

Order No. 7009050; 12/22/2006 

RS &W Drift 

Mine ID: 36-01818 

ORDER OF DISMISSAL 

This matter involves a withdrawal order issued on December 22, 2006, to the Contestant, 

RS & W Coal Company, Inc., ("RS & W") pursuant to section 104(b) of the Federal Mine 

Safety and Health Act, as amended, for failure to abate a 104(a) citation alleging a violation of 

30 C.F.R. 75.381(c)(5). The subject order was issued for RS & W's failure to install a 

directional lifeline now required under the Mine Improvement and New Emergency Response 

Act of 2006 ("Miner Act") after having been given a reasonable time for abatement. 

Although this case does not involve an Emergency Response Plan, this proceeding is the 

first under new requirements pursuant to the Miner Act. 

R S & W filed a Notice of Contest and requested an expedited hearing. Because of the 

emergency circumstance, a hearing was held on the record via telephone conference on 

December 27, 2006. R S & W appeared pro se and was represented by company president, 

Randy Rothennel. The Secretary of Labor (''Secretary") was represented by Adam Welsh. The 

parties filed post-hearing statements outlining their arguments. I held a subsequent telephone 

conference with the parties, on December 29, 2006. 

For the following reasons, I affmn the 104(b) order as written and R S & W must comply 

with the standard within two weeks of December 29, 2006. 

Summary of Parties' Arguments 

In its Notice of Contest, R S & W requests temporary relief from the order pending a 

resolution of its Petition for Modification now before the Mine Safety and Health Administration 

("MSHA") because "this is a new law elected by congress [sic]." Cont. Mot. The company 

29FMSHRC 86 
argues that "to comply with this law [would] be a diminution of safety for this mine." Id. In the 

petition, R S & W requests that the continuous directional lifeline not be required at this mine for 

safety reasons. Cont. Ex.1. In particular, the company asserts: 

[I]fwe hang a lifeline- 75- to 80-degree pitch, we have to use two hands 

and two feet on the ladder to crawl outside. A lifeline would be in the way, 

and as far as going in and out of the drift, we're mining on rocks. To leave 

the drill holes just to fasten his lifeline and the lifeline is supposed to be 

hung 6- to 8-foothigh, it is something that would happen, that we will 

have to travel the drift using the lifeline to rock. We will be standing up 

where the air is bad, where the lifeline we have, more or.less, is our trap 

going in and out. 

Tr. 15. 

RS & W does not dispute the fact of the violation. Id., Tr. 49. 

The Secretary contends she has established a prima facie case that the 104(b) order is 

valid and that RS & W does not dispute the validity of the order. Sec'y Position Statement 2-3. 

Moreover, the Secretary asserts that RS & W's request that the regulation not be applied to this 

mine is an invalid argument in this Commission proceeding because the issue relates to the 

Petition for Modification,. not to the validity of the order or underlying citation. Id. at 4. Such an 

argument is properly brought in Department of Labor proceedings associated with the 

modification petition. Id. In short, the Secretary avers, a Commission proceeding is not the 

proper forum for determining whether a mine should be exempt from a particular standard. Id. 

Discussion 

Section 75.381(c)(5) provides: 

Each escapeway shall be 

(5) Provided with a continuous, durable directional lifeline or equivalent 

device that shall be--

(i) Installed and maintained throughout the entire length of each 

escapeway as defined in paragraph (b) of this section; 

(ii) Flame-resistant in accordance with the requirements of part 18 of this 

chapter upon replacement of existing lifelines; but in no case later than 

June 15, 2009; 

(iii) Marked with a reflective material every 25 feet; 

iv) Located in such a manner for miners to use effectively to escape; 

(v) Equipped with directional indicators, signifying the route of escape, 

placed at intervals not exceeding 100 feet. When cones are used as 

directional indicators, they shall be installed so that the tapered section 

points inby; and 

29FMSHRC 87 
30 C:F.R. 75.38l(c)(5). 

As stated by the Secretary, there is no dispute that a violation exists. Tr. 28. R S & W 

was issued the underlying citation on June 8, 2006. Tr. 12. RS & W purchased a lifeline, but it 

did not install the line by the time the 104(b) order was issued in December. Tr. 14. The 

company was given a reasonable amount of time to obtain the lifeline from the vendor and 

extensions ohime to abate. Tr. 18, 26-27. Accordingly, I conclude that the 104(b) order was 

validly issued, and I affirm the order as written. 

I also agree with the Secretary's argument that the Petition for Modification and the issue 

of whether R S & W should be exempt from the regulation are irrelevant to this Commission 

proceeding. Such matters are properly brought before the Department of Labor. In general, the 

diminution of safety defense is not applied in Mine Act proceedings. An operator may use the 

defense only when the following circumstances apply: "( 1) the hazards of compliance are 

greater than non-compliance; (2) alternative means of protecting miners are unavailable; and (3) 

a modification proceeding under section 101 ( c) of the Mine Act would not have been 

appropriate." Westmoreland Coal Co., 7 FMSHRC 1338, 1341 (Sept.1985). See also Penn 

Allegh Coal Co. Inc., 3 FMSHRC 1392(June1981); Sewell Coal Co., 5 FMSHRC 2026 (Dec. 

1983). 

In response to the question of whether it would be safe to install the lifeline, MSHA Field 

Office Supervisor Lawrence Gazdick testified that MSHA is not requiring the mine to put the 

ladder on the pitch. It could be fastened to the face of the rock along the side. Tr. 29-30. 

Gazdick testified that this is not a modification of the standard; the requirements for installation 

are only slightly different than the requirements as understood by R S & W. Tr. 32-33. Thus, R 

S & W has not met all requirements of the test. 

The Commission later stated that while Penn Allegh and Sewell preclude resolution of a 

modification petition based upon diminution of safety per se in enforcement proceedings, they 

do not "bar[ ] the Commission from weighing the hazards to miners of compliance vs. noncompliance within the context of an extension of abatement time to contest" Clinchfield Coal 

Co., 11FMSHRC2120, 2130 (Nov. 1989). However, this exception does not apply, as Mr. 

Gazdick testified that R S & W was given approximately four chances to abate over a period 

exceeding six months. Tr. 26. 

During the conference call on December 29, 2006, I issued a bench decision, ordering R 

S & W to install the lifeline after receiving assurance from MSHA that it could install the lifeline 

in the manner indicated by Mr. Gazdick. MSHA agreed to allow the mine to remain in operation 

during those two weeks. 

29FMSHRC 88 
Accordingly, R S & W is ORDERED to install the lifeline within two weeks of 

December 29, 2006. If it fails to do so, MSHA, once again, will close the mine. 

This case is.DISMISSED. 

I 

+?~.~ Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution: 

Adam F. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. fudependence Mall West, Philadelphia, PA 19106-3306 

Randy Rothermel, Mine Operator, R S & W Coal Company, Inc., 207 Creek Road, 

Klingerstown, PA 17941 

/rao 

29FMSHRC 89 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEBSTER COUNTY COAL, LLC, 

Respondent 

Washington, D.C. 20001 

January 12, 2007 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2006-320 

A. C. No. 15-02132-85547 

Dotiki Mine 

DECISION 

Appearances: Christian Barber, Esq. and Thomas Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, on behalf of the Petitioner; 

Thomas C. Means, Esq., Crowell & Moring LLP, Washington, DC and Mark Evans, 

Director of Safety and Training, Webster County Coal, LLC, Nebo, Kentucky, on 

behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon a petition for civil penalty filed by the Secretary of Labor 

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

seq., the "Act," charging Webster County Coal, LLC, (Webster County) with one violation of the 

mandatory standard at 30 C.F .R. § 7 5. 503 and proposing a civil penalty of $629. 00 for the violation. 

The general issue before me is whether Webster County violated the cited standard and, if so, what 

is the appropriate civil penalty to be assessed in accordance with section 11 O(i) of the Act. Also 

before me is the question of whether the Commission has jurisdiction in this case regarding the 

validity of a "section 104(b )" order. Additional specific issues are also addressed as noted. 

Citation No. 7662703 alleges a violation of the standard at 30 C.F.R. § 75.503 and charges 

as follows: 

The Long Airdox 488 scoop, Company No. 6239 on number 1unit,MMU031, was not 

being maintained in a permissible condition. The locking bar used to secure the top lid of 

the left side battery box was missing. 

The cited standard, 30 C.F.R. § 75.503, provides that "[t]he operator of each coal mine shall 

maintain in permissible condition all electric face equipment required by§§ 75.500, 75.501, 75.504 

to be permissible which is taken into or used inby the last open crosscut of any such mine." There 

is no dispute that the cited scoop was required by the cited standard to be maintained in permissible 

29FMSHRC 90 
condition and that the scoop was not, at the time the citation in this case was issued on January 5, 

2006, being maintained in the required permissible condition.1 The Secretary's findings of low 

gravity and moderate negligence are also undisputed. What is disputed is the issuance on January 

9, 2006, of"failure to abate" withdrawal Order No. 7662706 issued pursuant to section 104(b) of 

the Act on January 9, 2006, and the enhanced penalty resulting from the alleged failure to timely 

abate the violative condition. 

For the following reasons, however, I find that this Commission does not have jurisdiction 

to entertain a challenge to that order. The Act provides two potential opportunities for an operator 

to contest before this Commission an order issued under section 104. Section 105( d) provides an 

operator a right to contest an order issued under section 104 within 30 days of receipt of the order. 

The order at bar was not contested in this manner. Alternatively, where a proposed civil penalty is 

assessed under section l lO(a) for a cited violation, section 105(a) provides that an operator has a 

right to contest the alleged violation or the proposed assessment of penalty within 30 days of receipt 

of notice of the proposed assessment.·-In this case, however, no opportunity to contest the 104(b) 

order was provided under section 105(a) because there was no violation alleged in, and there was 

no proposed assessment of a penalty for, the 104(b) order. Section 104(b) orders, like the one at 

issue herein, typically do not allege a separate violation. Consequently, no civil penalty can be 

assessed for the order under the mandatory language of section llO(a) of the Act. Because no 

penaltywas assessed for the 104(b) order, it maybe inferred that the notation "104(a)/104(b)" on the 

assessment form refers only to the operator's lack of good faith in attempting to achieve rapid 

compliance after notification of the violation- -one of the factors that the Commission and its judges 

must consider in determining the amount of a civil penalty under section 11 O(i) of the Act. 

Within the above framework it is clear that the validity of the 104(b) order is therefore not 

properly before me.2 Nevertheless, the allegations in the order are relevant in determining an 

appropriate civil penalty under section 11 O(i) of the Act. In this regard the order alleges as follows: 

No apparent effort was made by the operator to repair the locking bar used to secure the top 

lid of the battery box on the Long Airdox Scoop company number 6239 on section no. 1, 

MMU 031. The top lids were not secured at the time of the inspection. 

William Cook III, an inspector for the Department of Labor's Mine Safety and Health 

Adipip.istration (MSHA) testified, without contradiction, that on January 5, 2006, he issued Citation 

No. 7662703 after observing that the locking bar to the battery box lid on the left side of the cited 

1 Respondent's attempt, in its post-hearing brief, to now deny what was stipulated at hearing 

and to assert a defense not raised at hearing, is untimely. The attempted denial is rejected and the 

defense will be considered as waived. 

2 For the reasons subsequently set forth in this decision, however, I would, in any event, 

have found that the Secretary had proven the validity of the order by a preponderance of the 

evidence. See Mid-Continent Resources, Inc., 11 FMSHRC 505, 509 (April, 1989). 

29FMSHRC91 
scoop had been broken off. The Secretary's representation that Respondent stipulated that the scoop 

was accordingly not being maintained in a permissible condition, was not disputed. Cook explained 

that, without a secured lid over the battery box, a foreign object could contact the battery tenninals 

causing a fire or explosion. He considered however, that injuries were unlikely as a result of the 

violation because there was no evidence of an explosive atmosphere. He found the violation to be 

oflow gravity and the operator chargeable with moderate negligence. These findings are undisputed 

and accepted for purposes of a civil penalty assessment. 

According to ·the undisputed testimony of fuspector Cook, both Foreman Jimmy Ray and 

Section Mechanic James Chappell were present when he issued the citation. At that time, he told 

them that they could wrap a chain over the subject lid tightened with a "boomer" as a temporary 

measure to permit continued operations. He testified that he also told them, however, that such a 

temporary measure would not be sufficient to terminate the citation. Cook issued the citation with 

a termination due.date of January 6, 2006, at 8:00 a.m., nearly 24 hours from the issuance of the 

citation. According to the credible testimony of Inspector Cook, he also told Mark Evans, 

Respondent's director of safety and training and Gary Lewis, the chief electrician, that the chain 

wrap would provide only a temporary fix for the problem. 

fuspector Cook returned to the mine on January 9, 2006, and found the cited scoop without 

even the temporary chain and with no other means of securing the battery lid. At this time Cook 

issued the "section 104 (b )"withdrawal order. He terminated the order after the Respondent welded 

a chain onto the scoop and secured the chain on top of the battery box with a bolt and nut. · Cook 

explained that the loose chain pennitted as a temporary fix on January 5th was inadequate because 

the chain could fall off or be easily removed whereas the chain welded onto the scoop on January 

9th would not fall off and was secured with a nut and bolt. Cook nevertheless told Mine Foreman 

Larry Mitchell that they still needed to replace the locking bar. 

Webster County argues in its post-hearing brief that the citation should have been terminated 

on January 5, 2006, when it "took immediate action to 'secure' and thus abate the violative 

condition". As previously noted, however, Inspector Cook credibly testified that the temporary use 

of a loose chain wrapped around the battery lid did not provide a secure closure because it could 

readily fall off or be removed for other uses. fudeed, when he returned on January 9, 2006, the chain 

was no longer present and the lid to the battery compartment was unsecured. Moreover, at the time 

he issued the citation, Inspector Cook informed the Respondent's foreman, its section mechanic, its 

director of safety and training and its chief electrician of the necessity to provide more secure repairs 

and they were advised that the citation would not be terminated until such repairs were made. The 

inspector's assessment of the required abatement was certainly reasonable under the circumstances. 

fu reaching these conclusions, I note that Webster County presented no testimony at hearing 

and submitted as evidence only the "out-of-court" statements of Section Mechanic, James Chappell 

and Scoop Operator, Anthony Yates (Exh. R-1 and R-2 respectively). While such statements are 

admissible in Commission proceedings the witnesses could not be subjected to the scrutiny of cross 

examination and therefore the statements cannot be given the same weight as testimony at hearing. 

29FMSHRC92 
In addition, without any evidence of the experience and expertise of these gentlemen, I find that 

neither statement is sufficient to negate the credible expert testimony of Inspector Cook, that the 

temporary method of utilizing a loose chain to secure the battery lids was inadequate and was indeed 

permitted only as a temporary fix insufficient to abate the violative condition. Cook had 19 years 

experience in the safety department of Peabody Coal Company and was familiar with underground 

mining equipment and the safety issues relating to such equipment. He also had two years 

experience as a coal mine inspector for MSHA and attended the 26 week training program at the 

MSHA academy in Becldey, West Virginia. 

Under all the circumstances, I therefore find that the Secretary has proven by a preponderance 

of the evidence thatthe violation charged in Citation No. 7662703 was not abated in a timely or good 

faith manner. 

Civil Penalties 

Under section 11 O(i) of the Act, the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the operator in 

committing the violation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operator's ability to continue in 

business. The record shows that Webster County is a large size mine and has a modest history of 

violations (0.3 to 0.5 violations per inspection day). The gravity and negligence findings have 

previously been discussed in the instant decision: As previously noted, the violation was not abated 

in a timely and good faith manner. There is no evidence that the penalty would affect the operator's 

ability to continue in business. Under the circumstances, I find that the Secretary's proposed penalty 

of $629 .00, is appropriate for the violation charged herein. 

ORDER 

Citation No. 7662703 is affirmed and Webster County Coal, LLC, is directed to pay a civil 

penalty of $629. 00 for the violation charged in the citation within 40 days of the date of this decision. 

Order No. 7662706 is affirmed as it became final at the expiration of 30 days after its issuance. 

Gary Melick 

Administrative Law Judge 

(202) 434-9977 

29FMSHRC93 
Distribution: (Certified Mail) 

Christian Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville,_ TN 37219 

Thomas C. Means, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave, NW, Washington, DC 

20004-2595 

Mark Evans, Director of Safety & Training, Webster County Coal, LLC, 1586 Balls Hill Road, 

Nebo, KY 42441 

/lh 

29FMSHRC94 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

January 17, 2007 

HIGHLAND MINING COMP ANY, LLC, 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA)~ 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 2006-189-R 

Citation No. 7661095;02/0l/2006 

Docket No. KENT 2006-190-R 

Citation No. 7661098;02/0l/2006 

Docket No. KENT 2006-194-R 

Citation No. 7663983;02/0l/2006 

Docket No. KENT 2006-194-R 

·Citation No. 7663983;02/0l/2006 

Docket No. KENT 2006-195-R 

Citation No. 7663985;02/0l/2006 

Docket No. KENT 2006-196-R 

Citation No. 7638723;02/02/2006 

Docket No. KENT 2006-201-R 

Citation No. 7663855;02/14/2006 

Docket No. KENT 2006-202-R. 

Citation No. 7663859;02/16/2006 

Docket No. KENT 2006-227-R 

Citation No. 7638501; 02/21/2006 

Docket No. KENT 2006-228-R 

Citation No. 7638505; 02/21/2006 

Docket No. KENT 2006-229-R 

Citation No. 7663860; 02/2112006 

Highland 9 Mine 

Mine ID 15-02709 

29FMSHRC 95 
ORDER LIFTING STAYS 

DISMISSAL ORDER 

These cases are before me on Notices of Contest under section 105(d) of the Federal 

Mine Safety and Health Act ofl977, as amended, 30 U.S.C. § 815(d). Docket Nos. KENT 

2006-189-R through KENT 2006-202-R were stayed on April 13, 2006, and Docket Nos. KENT 

2006-227-R through KENT 2006-229-R were stayed on May 4, 2006, pending the filing of the 

corresponding civil penalty proceedings. With the filing of Docket Nos. KENT 2006-340 and 

KENT 2006-406, that has occurred. 

Accordingly, the stays are LIFTED. Further, with the filing of the civil penalty cases, the 

contest proceedings are moot. Therefore, the captioned contest cases are DISMISSED. 

Distribution: 

dd//~ T.T~~--~ Administrative Law Judge 

(202) 434-9973 

Rebecca J. Oblak, Esq, Atkins & Oblak, PLLC, 5000 Hampton Center, Suite 4, Morgantown, 

WV 26505 

Neil Morholt, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church St., Suite 230, 

Nashville, TN 37219 

29FMSHRC 96 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

CHESTNUT COAL, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

R~pondent 

January 19, 2007 

CONTEST PROCEEDINGS 

Docket No. PENN 2006-145-R 

Citation No. 7008707;03/02/2006 

Docket No. PENN 2006-146-R 

Order No. · 7008708;03/02/2006 

Docket No. PENN 2006-147-R 

Order No. 7008709;03/02/2006 

Docket No. PENN 2006-148-R 

Citation No. 7008710;03/02/2006 

Docket No. PENN 2006-149-R 

Citation No. 7008711;03/02/2006 

No. 10 Slope . 

Mine ID 36-07059 

ORDER OF DISMISSAL WITHOUT PREJUDICE 

These cases are before me on Notices of Contest filed pursuant to section 105(d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815( d). The Secretary has issued proposed 

civil penalties for the alleged violations and the operator has Gontested those penalties pursuant to 

section 105( a) of the Act. The Secretary has filed a petition for assessment of civil penalties and 

the operator has filed an answer. See Commission Docket No. PENN 2006-272. All issues 

related to the alleged violations and the amount of the proposed penalties will be resolved in the 

civil penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

29FMSHRC 97 
Distribution: 

Adele L. Abrams, Esq., Law Office, 4740 Corridor Place, Suite D, Beltsville, MD 20705 

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

/mh 

29FMSHRC98 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

February 1, 2007 

SPARTAN MINlNG COMPANY, INC., 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

.. · 

CONTEST PROCEEDINGS 

Docket No. WEV A 2006-540-R 

Order No. 6601354; 0510912006 

Docket No. WEV A2006-588-R 

Order No. 7460780; 05111/2006 

Docket No. WEV A 2006-589-R 

Order No. 7460781; 5/11/2006 

Docket No. WEV A 2006-590-R 

Citation No. 7460783; 5/11/2006 

Ruby Energy 

Mine ID 46-08808 

ORDER OF DISMISSAL WITHOUT PREJUDICE. 

FOLLOWING REMAND 

These cases are before me on Notices of Contest filed pursuant to section 105( d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). By order dated January 8, 2007, the 

cases were dismissed without prejudice because the Secretary had issued proposed civil penalties 

for the alleged violations which the operator had contested pursuant to section 105(a) of the Act, 

and all issues related to the alleged violations and the amount of the proposed penalties would be 

resolved in the civil penalty proceeding. The Commission, on its own motion, directed 

review, summarily vacated the order, and remanded the cases for further proceedings. The 

Commission's expressed concern was the absence of an explanation of why the cases were 

dismissed, as opposed to being consolidated with the civil penalty proceeding, an option noted in 

Energy Fuels Corp., 1FMSHRC299, 308(May1979). For the reasons set forth below, 

dismissal without prejudice is the preferable option for dealing with duplicative litigation in the 

circumstances of these cases. 

Contest proceedings are initiated by the filing of a Notice of Contest pursuant to section 

105( d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural Rule 20. 

30 U.S.C. § 815(d); 29 C.F.R. § 2700.20. A Notice of Contest of a citation or order issued under 

section 104 of the Act must be filed within 30 days of the issuance of the citation or order, and 

places into issue the fact of violation and any .special findings contained in the citation or order. 

It does not, however, place into issue any proposed penalty assessment that may subsequently be 

issued by the Secretary. 29 C.F.R. § 2700.21(a). An operator may also contest, pursuant to 

section 105(a) of the Act, a proposed penalty assessment for a citation or order. A contest of the 

proposed penalty assessment prompts the filing of a civil penalty proceeding and places into 

issue not only the proposed penalty, but the fact of violation and any special findings contained in 

the citation or order. Quin/and Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 

29 C.F.R. § 2700.21(b). 

29FMSHRC 99 
An operator's contest of both the issuance of a citation or order and the subsequent 

proposed penalty assessment for the violation results in two separate proceedings before the 

Commission. The issues involved in the contest proceeding are entirely duplicative of issues 

involved in the penalty proceeding. There are two actions in the same forum, involving the same 

parties, and the same demand for relief. The contest proceeding no longer serves any useful 

purpose, practically or legally. As a general principle, duplicative litigation is to be avoided in 

the federal courts, as it undoubtedly is in other courts and adjudicative bodies. 1 See Colorado 

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Federal judges may, 

exercising their general power to administer their dockets, stay or dismiss a suit that is 

duplicative of another federal court suit. Curtis v. Citibank, NA., 226 F.3rd 133, 138-39 (2d Cir. 

2000) ("plaintiffs have rto right to maintain two actions on the same subject matter in the same 

court, against the same defendants at the same time."). Enjoining the parties from proceeding in 

one of the cases, or consolidating the cases are other options available to deal with duplicative 

litigation.2 

Historically, Commission Administrative Law Judges have typically consolidated 

pending contest cases with subsequently filed penalty proceedings. The practice may have been 

an outgrowth of the Commission's suggestion inEnergy Fuels. However, the Commission has 

recently experienced a substantial increase in the number of contest proceedings filed. See 

Spartan Mining Co., 28 FMSHRC 892 (Order dated September 28, 2006) (ALJ). Penalty cases 

may involve as many as 20 citations or orders, all of which may be the subjects of pending 

contest cases.3 Because there is no way to predict how violations will be grouped for penalty 

assessment purposes, contest cases related to a penalty proceeding may have been assigned to 

several Commission ALJ' s. 

Consolidating such contest cases with the penalty action would not eliminate the 

duplicative litigation problem, and would necessitate the reassignment of numerous cases.4 

1 Duplicative in forma pauperis proceedings may be dismissed as malicious and abusive 

pursuant to 28 U.S.C. § 1915(d). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). 

2 On procedural matters, Commission Administrative Law Judges are guided by the 

Federal Rules of Civil Procedure on questions not regulated by the Act, the Commission's 

procedural rules or the Administrative Procedure Act. 29 C.F .R. § 2700.1 (b ). Commission 

judges have authority comparable to federal district court judges to manage their dockets and 

deal with duplicative litigation. 30 U.S.C. § 823(d)(l), (e); 5 U.S.C. § 556; 29 C.F.R. § 2700.55. 

3 Five penalty actions in which Spartan Mining Company is the named Respondent have 

been assigned to this Judge. They involve at least thirty-seven contest proceedings, several of 

which had been assigned to other judges. 

4 While a split of authority has developed in the federal circuit courts, the better view is 

that expressed by the Supreme Court prior to adoption of the federal rules, i.e., consolidated 

cases retain their individual legal identity, they are not merged into a single cause. Johnson v. 

Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). 

29 FMSHRC 100 
There does not appear to be any reason to place this administrative burden on Commission staf£ 

Moreover, the captions of consolidated actions that include listings of numerous contest 

proceedings with penalty proceedings produce cumbersome documents, in which titles and 

substance are not readily apparent due to pages of case listings. 

Staying contest proceedings until final disposition of a related penalty case would avoid 

the need to reassign cases, but would preserve the pendency of duplicative litigation and create 

docket management problems. A mechanism would have to be developed to notify Judges to 

whom the various contest cases had been assigned of the disposition of the penalty case. 

Dismissal of contest cases, without prejudice, upon filing of the penalty proceeding 

would eliminate duplicative litigation, avoid reassignment and tracking problems, and result in 

more concise and efficient case and document captioning. · 

While these contest cases and the related penalty proceeding are now assigned to the 

undersigned Administrative Law Judge, the advantages of dismissing them without prejudice 

outweigh the options of staying them or consolidating them with the penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

Distribution: 

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee St., Suite 600, 

Charleston, WV 25339 

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd 

Floor West, Arlington, VA 22209-2247 

/mh 

29 FMSHRC 101 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

February 5, 2007 

SPARTAN MINJNG COMP ANY, INC., 

Contestant 

CONTEST PROCEEDINGS 

v. 

Docket No. WEV A 2006-527-R 

Citation No. 6690068; 05/10/2006 

Docket No. WEV A 2006-528-R 

Citation No. 7427026; 05/1012006 

Docket No. WEV A 2006-529-R 

Citation No. 7427031; 05/10/2006 

Docket No. WEV A 2006-530-R 

Citation No. 7583382; 05/10/2006 

Docket No. WEVA 2006-531-R 

Citation No. 7583383; 05/10/2006 

Docket No. WEV A 2006-560-R 

Citation No. 7583380; 0510912006 

Docket No. WEVA 2006-561-R 

Citation No. 7583381; 0510912006 

Docket No. WEV A 2006-562-R 

Citation No. 7427016; 0510912006 

Docket No. WEV A 2006-563-R 

Citation No. 7427018; 05/09/2006 · 

Docket No. WEV A 2006-564-R 

Citation No. 7427019; 0510912006 

Docket No. WEV A 2006-565-R 

Citation No. 6690054; 0510912006 

Docket No. WEV A 2006-566-R 

Citation No. 6690055; 0510912006 

Docket No. WEVA 2006-567-R 

Citation No. 6690057; 0510912006 

29 FMSHRC I 02 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent_ 

Docket No. WEV A 2006-568-R 

Citation No. 6690060; 05/09/2006 

Docket No. WEV A 2006-569-R 

Citation No. 7427015; 0510912006 

Docket No. WEV A 2006-577-R 

Citation No. 7583384; 05/10/2006 

Docket No. WEVA 2006-578-R 

Citation No. 7583394; 05/10/2006 

Docket No. WEV A 2006-579-R 

Citation No. 7583395; 05/10/2006 

Docket No. WEV A 2006-580-R 

Citation No. 7583396; 05/10/2006 

Docket No. WEVA2006-581-R 

Citation No. 7583398; 05110/2006 

Docket No. WEV A 2006-582-R 

Citation No. 7583399; 05/10/2006 

Diamond Energy 

Mine ID 46-08738 

ORDER OF DISMISSAL WITHOUT PREJUDICE 

FOLLOWING REMAND 

These cases are before me on Notices of Contest filed pursuant to section 105(d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). By order dated December 21, 2006, 

the cases were dismissed without prejudice because the Secretary had issued proposed civil 

penalties for the alleged violations which the operator had contested pursuant to section 105(a)of 

the Act, and all issues related to the alleged violations and the amount of the proposed penalties 

would be resolved in the civil penalty proceeding. The Commission, on its own motion, directed 

review, summarily vacated the order, and remanded the cases for further proceedings. The 

Commission's expressed concern was the absence of an explanation of why the cases were 

dismissed, as opposed to being consolidated with the civil penalty proceeding, an option noted in 

Energy Fuels Corp., 1FMSHRC299, 308(May1979). For the reasons set forth below, 

dismissal without prejudice is the preferable option for dealing with duplicative litigation in the 

circumstances of these cases. 

29 FMSHRC 103 
Contest ·proceedings are initiated by the filing of a Notice of Contest pursuant to section 

105(d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural Rule 20. 

30 U.S.C. § 815( d); 29 C.F.R. § 2700.20. A Notice of Contest of a citation or order issued under 

section 104 of the Act must be filed within 30 days of the issuance of the citation or order, and 

places into issue the fact of violation and any special findings contained in the citation or order. 

It does not, however, place into issue any proposed penalty assessment that may subsequently be 

issued by the Secretary. 29 C.F.R. § 2700.21(a). An operator may also contest, pursuant to 

section 105(a) of the Act, a proposed penalty assessment for a citation or order. A contest of the 

proposed penalty assessment prompts the filing of a civil penalty proceeding and places into 

issue not only the proposed penalty, but the fact of.violation and any special findings contained in 

the citation or order. Quin/and Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 

29 C.F.R. § 2700.21(b). 

An operator's contest of both the issuance of a citation or order and the subsequent 

proposed penalty assessment for the violation results in two separate proceedings before the 

Commission. The issues involved in the contest proceeding are entirely duplicative of issues 

involved in the penalty proceeding. There are two actions in the same forum, involving the same 

parties, and the same demand for relief. The contest proceeding no longer serves any useful 

purpose, practically or legally. As a general principle, duplicative litigation is to be avoided in 

the federal courts, as it undoubtedly is in other courts and adjudicative bodies. 1 See Colorado 

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Federal judges may, 

exercising their general power to administer their dockets, stay or dismiss a suit that is 

duplicative of another federal court suit. Curtis v. Citibank, NA., 226 F.3rd 133, 138-39 (2d Cir. 

2000) ("plaintiffs have no right to maintain two actions on the same subject matter in the same 

court, against the same defendants at the same time"). Enjoining the parties from proceeding in 

one of the cases, or consolidating the cases are other options available to deal with duplicative 

litigation.2 

Historically, Commission Administrative Law Judges have typically consolidated 

pending contest cases with subsequently filed penalty proceedings. The practice may have been 

an outgrowth of the Commission's suggestion in Energy Fuels. However, the Commission has 

recently experienced a substantial increase in the number of contest proceedings filed. See 

Spartan Mining Co., 28 FMSHRC892 (Order dated September 28, 2006) (ALJ). Penalty cases 

may involve as many as 20 citations or orders, all of which may be the subjects of pending 

1 Duplicative in forma pauperis proceedings may be dismissed as malicious and abusive 

pursuant to 28 U.S.C. § 1915(d). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). 

2 On procedural matters, Commission Administrative Law Judges are guided by the 

Federal Rules of Civil Procedure on questions not regulated by the Act, the Commission's 

procedural rules or the Administrative Procedure Act. 29 C.F.R. § 2700. l (b ). Commission 

judges have authority comparable to federal district court judges to manage their dockets and 

deal with duplicative litigation. 30 U.S.C. § 823(d)(l), (e); 5 U.S.C. § 556; 29 C.F.R. § 2700.55. 

29 FMSHRC 104 
contest cases.3 Because there is no way to predict how violations will be grouped for penalty 

assessment purposes, contest cases related to a penalty proceeding may have been assigned to 

several Commission ALJ's. 

Consolidating such contest cases with the penalty action would not eliminate the 

duplicative litigation problem, and would necessitate the reassignment of numerous cases.4 

There does not appear to be any reason to place this administrative burden on Commission staff. 

Moreover, the captions of consolidated actions that include listings of numerous contest 

proceedings with penalty proceedings produce cumbersome documents, in which titles and 

substance are not readily apparent due to pages of case listings. 

Staying contest proceedings until final disposition of a related penalty case would avoid 

the need to reassign cases, but would preserve the pendency of duplicative litigation and create 

docket management problems. A mechanism would have to be developed to notify Judges to 

whom the various contest cases had been assigned of the disposition of the penalty case. 

Dismissal of contest cases, without prejudice, upon filing of the penalty proceeding 

would eliminate duplicative litigation, avoid reassignment and tracking problems, and result in 

more concise and efficient case and document captioning. 

While these contest cases and the related penalty proceedings are now assigned to the 

undersigned Administrative Law Judge, the advantages of dismissing them without prejudice 

outweigh the options of staying them or consolidating them with the penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

... 

3 Five penalty actions in which Spartan Mining Company is the named Respondent have 

been assigned to this Judge. They involve at least thirty-seven contest proceedings, several of 

which had been assigned to other judges. 

4 While a split of authority has developed in the federal circuit courts, the better view is 

that expressed by the Supreme Court prior to adoption of the federal rules, i.e., consolidated 

cases retain their individual legal identity, they are not merged into a single cause. Johnson v. 

Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). 

29 FMSHRC 105 
Distribution: 

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee St., Suite 600, 

Charleston, WV 25339 

Peter B. Silvain, Jr., Esq., Keith E. Bell, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247 

Richard. D. Hosch, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 

100 Bluestone Road, Mt. Hope, WV 25880-1000 

/mh 

29 FMSHRC 106 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

CHESTNUT COAL, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

February 6, 2007 

CONTEST PROCEEDINGS 

Docket No. PENN 2006-145.;R 

Citation No. 7008707;03/02/2006 

Docket No. PENN 2006-146-R 

Order No. 7008708;03/02/2006 

Docket No. PENN 2006-147-R 

Order No. 7008709;03/02/2006 

Docket No. PENN 2006-148-R 

Citation No. 7008710;03/02/2006 

Docket No. PENN 2006-149-R 

Citation No. 7008711 ;03/02/2006 

No. 10 Slope . 

Mine ID 36-07059 

ORDER OF DISMISSAL WITHOUT PREJUDICE 

FOLLOWING REMAND 

These cases are before me on Notices of Contest filed pursuant to section 105(d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). By order dated January 19, 2007, the 

cases were dismissed without prejudice because the Secretary had issued proposed civil penalties 

for the alleged violations which the operator had contested pursuant to section 105( a) of the Act, 

and all issues related to the alleged violations and the amount of the proposed penalties would be 

resolved in the civil penalty proceeding. The Commission, on its own motion, directed 

review, summarily vacated the order, and remanded the cases for further proceedings. The 

Commission's expressed concern was the absence of an explanation of why the cases were 

dismissed, as opposed to being consolidated with the civil penalty proceeding, an option noted in 

Energy Fuels Corp., 1 FMSHRC 299, 308 (May 1979). For the reasons set forth below, 

dismissal without prejudice is the preferable option for dealing with duplicative litigation in the 

circumstances of these cases. 

Contest proceedings are initiated by the filing of a Notice of Contest pursuant to section 

105( d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural Rule 20. 

30 U.S.C. § 815(d); 29 C.F.R. § 2700.20. A Notice of Contest of a citation ot order issued under 

29 FMSHRC 107 
section 104 of the Act must be filed within 30 days of the issuance of the citation or order, and 

places into issue the fact of violation and any special findings contained in the citation or order. 

It does not, however, place into issue any proposed penalty assessment that may subsequently be 

issued by the Secretary. 29 C.F.R. § 2700.21(a). An operator may also contest, pursuant to 

section 105(a) of the Act, a proposed penalty assessment for a citation or order. A contest of the 

proposed penalty assessment prompts the filing of a civil penalty proceeding and places into 

issue not only the proposed penalty, but the fact of violation and any special findings contained in 

the citation or order. Quinland Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 

29 C.F.R. § 2700.21(b). 

An operator's contest of both the issuance of a citation or order and the subsequent 

proposed penalty assessment for the violation results in two separate proceedings before the 

Commission. The issues involved in the contest proceeding are entirely duplicative of issues 

involved in the penalty proceeding. There are two actions in the same forum, involving the same 

parties, and the same demand for relief. The contest proceeding no longer serves any useful 

purpose, practically or legally. As a general principle, duplicative litigation is to be avoided in 

the federal courts, as it undoubtedly is in other courts and adjudicative bodies. 1 See Colorado 

River Water Conservatian Dist. v. United States, 424 U.S. 800, 817 (1976). Federal judges may, 

exercising their general power to administer their dockets, stay or dismiss a suit that is 

duplicative of another federal court suit. Curtis v. Citibank, NA., 226 F.3rd 133, 138-39 (2d Cir. 

2000) ("plaintiffs have no right to maintain two actions on the same subject matter in the same 

court, against the same defendants at the same time"). Enjoining the parties from proceeding in 

one of the cases, or consolidating the cases are other options available to deal with duplicative 

litigation.2 

Historically, Commission Administrative Law Judges have typically consolidated 

pending contest cases with subsequently filed penalty proceedings. The practice may have been 

an outgrowth of the Commission's suggestion in Energy Fuels. However, the Commission has 

recently experienced a substantial increase in the number of contest proceedings filed. See 

Spartan Mining Co., 28 FMSHRC 892 (Order dated September 28, 2006) (ALJ). Penalty cases 

may involve as many as 20 citations or orders, all of which may be the subjects of pending 

1 Duplicative in forma pauperis proceedings may be dismissed as malicious and abusive 

pursuant to 28 U.S.C. § 1915(d). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). 

2 On procedural matters, Commission Administrative Law Judges are guided by the 

Federal Rules of Civil Procedure on questions not regulated by the Act, the Commission's 

procedural rules orthe Administrative Procedure Act. 29 C.F.R. § 2700.l(b). Commission 

judges have authority comparable to federal district court judges to manage their dockets and 

deal with duplicative litigation. 30 U.S.C. § 823(d)(l), (e); 5 U.S.C. § 556; 29 C.F.R. § 2700.55. 

29 FMSHRC 108 
contest cases.3 Because there is no way to predict how violations will be grouped for penalty 

assessment purposes, contest cases related to a penalty proceeding may have been assigned to 

several Commission ALJ' s. 

Consolidating such contest cases with the penalty action would not eliminate the 

duplicative litigation problem, and would necessitate the reassigni;nent of numerous cases.4 

There does not appear to be any reason to place this administrative burden on Commission staff. 

Moreover, the captions of consolidated actions that include listings of numerous contest 

proceedings with penalty. proceedings produce cumbersome documents, in which titles and 

substance are not readily apparent due to pages of case listings. 

Staying contest proceedings until final disposition of a related penalty case would avoid 

the need to reassign cases, but would preserve the pendency of duplicative litigation and create 

docket management problems. A mechanism would have to be developed to notify Judges to 

whom the various contest cases had been assigned of the disposition of the penalty case. 

Dismissal of contest cases, without prejudice, upon filing of the penalty proceeding 

would eliminate duplicativeJitigation, avoid reassignment and tracking problems, and result in 

more concise and efficient case and document captioning. 

While these contest cases and the related penalty proceedings are assigned to the 

undersigned Administrative Law Judge, the advantages of dismissing them without prejudice 

outweigh the options of staying them or consolidating them with the penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

3 These contest proceedings were originally among a group of 48 such cases. Civil 

penalties were assessed for virtually all of the alleged violations. The operator did not timely 

contest many of the proposed assessments, which became final orders of the Commission, 

prompting dismissal of the related contest proceedings. 

4 While a split of authority has developed in the federal circuit courts, the better view is 

that expressed by the Supreme Court prior to adoption of the federal rules, i.e., consolidated 

cases retain their individual legal identity, they are not merged into a single cause. Johnson v. 

Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). 

29 FMSHRC 109 
Distribution: 

Adele L. Abrams, Esq., Law Office, 4740 Corridor Place, Suite D, Beltsville, MD 20705 

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

/mh 

29 FMSHRC 110 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

February 6, 2007 

SPARTAN MINlNG COMPANY, INC., 

Contestant 

CONTEST PROCEEDINGS 

v. 

Docket No. WEV A 2006-556-R 

Citation No. 7460761; 05/09/2006 

Docket No. WEV A 2006-557-R 

Citation No. 7460764; 05/09/2006 

Docket No. WEV A 2006-558-R 

Citation No. 7460766; 05/09/2006 

Docket No. WEV A 2006-559-R 

Citation No. 7460771; 0510912006 

Docket No. WEV A 2006-573-R 

Citation No. 6601360; 05/10/2006 

Docket No. WEV A 2006-574-R 

Citation No. 7460775; 05/10/2006 

Docket No. WEV A 2006-575~R 

Citation No. 7460777; 05/10/2006 

Docket No. WEV A 2006-576-R 

Citation No. 7460778; 05/10/2006 

Docket No. WEV A 2006-583-R 

Citation No. 6601358; 05/09/2006 

Docket No. WEV A 2006-584-R 

Citation No. 6601359; 05/09/2006 

29 FMSHRC 111 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

Docket No. WEV A 2006-585-R 

Citation No. 7062290; 05/1112006 

Docket No. WEV A 2006-586-R 

Citation No. 7062293; 05/11/2006 

Ruby Energy 

Mine ID 46-08808 

ORDER OF DISMISSAL WITHOUT PREJUDICE 

FOLLOWING REMAND 

These cases are before me on Notices of Contest filed pursuant to section 105(d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). By order dated December 21, 2006, 

the cases were dismissed without prejudice because the Secretary had issued proposed civil 

penalties for the alleged violations which the operator had contested pursuant to section 105(a) of 

the Act, and all issues related to the alleged violations and the amount of the proposed penalties 

would be resolved in the_civil penalty proceeding. The Commission, on its own motion, directed 

review, summarily vacated the order, and remanded the cases for further proceedings. The 

Commission's expressed concern was the absence of an explanation of why the cases were 

dismissed, as opposed to being consolidated with the civil penalty proceeding, an option noted in 

Energy Fuels Corp., 1FMSHRC299, 308(May1979). For the reasons set forth below, 

dismissal without prejudice is the preferable option for dealing with duplicative litigation in the 

circumstances of these cases. 

Contestproceedings are initiated by the filing of a Notice of Contest pursuant to section 

105( d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural Rule 20. 

30 U.S.C. § 815(d); 29 C.F.R. § 2700.20. A Notice of Contest of a citation or order issued under 

section 104 of the Act must be filed within 30 days of the issuance of the citation or order, and 

places into issue the fact of violation and any special :findings contained in the citation or order. 

It does not, however, place into issue any proposed penalty assessment that may subsequently be 

issued by the Secretary. 29 C.F.R. § 2700.2I(a). An operator may also contest, pursuant to 

section 105(a) of the Act, a proposed penalty assessment for a citation or order. A contest of the 

proposed penalty assessment prompts the filing of a civil penalty proceeding and places into 

issue not only the proposed penalty, but the fact of violation and any special findings contained in 

the citation or order. Quin/and Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 

29 C.F.R. § 2700.21(b). 

An operator's contest of both the issuance of a citation or order and the subsequent 

proposed penalty assessment for the violation results in two separate proceedings before the 

Commission. The issues involved in the contest proceeding are entirely duplicative of issues 

involved in the penalty proceeding. There are two actions in the same forum, involving the same 

parties, and the same demand for relief The contest proceeding no longer serves any useful 

purpose, practically or legally. As a general principle, duplicative litigation is to be avoided in 

29 FMSHRC 112 
the federal courts, as it undoubtedly is in other courts and adjudicative bodies. 1 See Colorado 

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Federal judges may, 

exercising their general power to administer their dockets, stay or dismiss a suit that is 

duplicative of another federal court suit. Curtis v. Citibank, N.A., 226 F .3rd 133, 138-39 (2d Cir. 

2000) ("plaintiffs have no right to maintain two actions on the same subject matter in the same 

court, against the same defendants at the same time"). Enjoining the parties from proceeding in 

one of the cases, or consolidating the cases are other options available to deal with duplicative 

litigation.2 

Historically, Commission Administrative Law Judges have typically consolidated 

pending contest cases with subsequently filed penalty proceedings. The practice may have been 

an outgrowth of the Commission's suggestion in Energy Fuels. However, the Commission has 

recently experienced a substantial increase in the number of contest proceedings filed. See 

Spartan Mintng Co., 28 FMSHRC 892 (Order dated September 28, 2006) (ALJ). Penalty cases 

may involve as many as 20 citations or orders, all of which may be the subjects of pending 

contest cases.3 Because there is no way to predict how violations will be grouped for penalty 

assessment purposes, contest cases related to a penalty proceeding may have been assigned to 

several Commission ALJ's. 

Consolidating such contest cases with the penalty action would not eliminate the 

duplicative litigation problem, and would necessitate the reassignment of numerous cases.4 

There does not appear to be any reason to place this administrative burden on Commission staff. 

Moreover, the captions of consolidated actions that include listings of numerous contest 

proceedings with penalty proceedings produce cumbersome documents, in which titles and 

substance are not readily apparent due to pages of case listings. 

1 Duplicative in forma pauperis proceedings may be dismissed as malicious and abusive 

pursuant to 28 U.S.C. § 1915(d). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). 

2 On procedural matters, Commission Administrative Law Judges are guided by the 

Federal Rules of Civil Procedure on questions not regulated by the Act, the Commission's 

procedural rules or the Administrative Procedure Act. 29 C.F.R. § 2700.l(b). Commission 

judges have authority comparable to federal district court judges to manage their dockets and 

deal with duplicative litigation. 30 U.S.C. § 823(d)(l), (e); 5 U.S.C. § 556; 29 C.F.R. § 2700.55. 

3 Five penalty actions in which Spartan Mining Company is the named Respondent have 

been assigned to this Judge. They involve at least thirty-seven contest proceedings, several of 

which had been assigned to other judges. 

4 While a split of authority has developed in the federal circuit courts, the better view is 

that expressed by the Supreme Court prior to adoption of the federal rules, i.e., consolidated 

cases retain their individual legal identity, they are not merged into a single cause. Johnson v. 

Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). 

29 FMSHRC 113 
Staying contest proceedings until final disposition of a related penalty case would avoid 

the need to reassign. cases, but would preserve the pendencyof duplicative litigation and create 

docket management problems. A mechanism would have to be developed to notify Judges to 

whom the various contest cases had been assigned of the disposition of the penalty case. 

Dismissal of contest cases, without prejudice, upon filing of the penalty proceeding 

would eliminate duplicative litigation, avoid reassignment and tracking problems, and result in 

more concise and efficient case and document captioning. 

While these contest cases and the related penalty proceedings are now assigned to the 

undersigned Administrative Law Judge, the advantages of dismissing them without prejudice 

outweigh the options of staying them or consolidating them with the penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

Distribution: 

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee St., Suite 600, 

Charleston, WV 25339 

Peter B. Silvain, Jr., Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22"d Floor West, Arlington, VA 22209-2247 

James F. Bowman, Richard D. Hosch, Conference and Litigation Representatives, 

U.S. Department of Labor, MSHA, 100 Bluestone Road, Mt. Hope, WV 25880-1000 

/mh 

29 FMSHRC 114 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

CHESTNUT COAL, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

February 7, 2007 

CONTEST PROCEEDINGS 

Docket No. PENN 2006-89-R 

Citation No. 7008218;02/21/2006 

Docket No. PENN 2006-90-R 

Order No. 7008219;02/21/2006 

Docket No. PENN 2006-94-R 

Order No. 7008224;02/21/2006 

Docket No. PENN 2006-95-R 

Citation No. 7008225;02/23/2006 

Docket No. PENN 2006-96-R 

Citation No. 7008226;02/23/2006 

Docket No. PENN 2006-97-R 

Citation No. 7008227;02/23/2006 

Docket No. PENN 2006-109-R 

Citation No. 7008298;02/2 l/2006 

Docket No. PENN 2006-110-R 

Order No. 7008299;02/21/2006 

Docket No. PENN 2006-116-R 

Order No. 7008418;02/23/2006 

Docket No. PENN 2006-119-R 

Order No. 7008701 ;02/2112006 

Docket No. PENN 2006-120-R 

Order No. 7008702;02/21/2006 

Docket No. PENN 2006-121-R 

Citation No. 7008703;02/23/2005 

29 FMSHRC 115 
Docket No. PENN 2006-122-R 

Citation No. 7008704;02/23/2006 

Docket No. PENN 2006-123-R 

Citation No. 7008705;02/23/2006 

No. 10 Slope 

ORDER OF DISMISSAL WITHOUT PREJUDICE 

FOLLOWING REMAND 

These cases are before me on Notices of Contest filed pursuant to section 105( d) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). By order dated December 21, 2006, 

the cases were dismissed without prejudice because the Secretary had issued proposed civil 

penalties for the alleged violations which the operator had contested pursuant to section 105(a) of 

the Act, and all issues related to the alleged violations and the amount of the proposed penalties 

would be resolved in the civil penalty proceeding. The Commission, on its own motion, directed 

review, summarily vacated the order, and remanded the cases for further proceedings. The 

Commission's expressed concern was the absence of an explanation of why the cases were 

dismissed, as opposed to being consolidated with the civil penalty proceeding, an option noted in 

Energy Fuels Corp., 1 FMSHRC 299, 308 (May 1979). For the reasons set forth below, 

dismissal without prejudice is the preferable option for dealing with duplicative litigation in the 

circumstances of these cases. 

Contest proceedings are initiated by the filing of a Notice of Contest pursuant to section 

105(d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural Rule 20. 

30 U.S.C. § 815( d); 29 C.F.R. § 2700.20. A Notice of Contest of a citation or order issued under 

section 104 of the Act must be filed within 30 days of the issuance of the citation or order, and 

places into issue the fact of violation and any special findings contained in the citation or order. 

It does not, however, place into issue any proposed penalty assessment that may subsequently be 

issued by the Secretary. 29 C.F.R. § 2700.21(a). An operator may also contest, pursuant to 

section 105(a) of the Act, a proposed penalty assessment for a citation or order. A contest of the 

proposed penalty assessment prompts the filing of a civil penalty proceeding and places into 

issue not only the proposed penalty, but the fact of violation and any special findings contained in 

the citation or order. Quin/and Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 

29 C.F.R. § 2700.21(b). 

An operator's contest of both the issuance of a citation or order and the subsequent 

proposed penalty assessment for the violation results in two separate proceedings before the 

Commission. The issues involved in the contest proceeding are entirely duplicative of issues 

involved in the penalty proceeding. There are two actions in the same forum, involving the same 

parties, and the same demand for relief The contest proceeding no longer serves any useful 

purpose, practically or legally. As a general principle, duplicative litigation is to he avoided in 

29 FMSHRC 116 
the federal courts, as it undoubtedly is in other courts and adjudicative bodies. 1 See Colorado 

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Federal judges may, 

exercising their general power to administer their dockets, stay or dismiss a suit that is 

duplicative of another federal court suit. Curtis v. Citibank, NA., 226 F.3rd 133, 138-39 (2d Cir. 

2000) ("plaintiffs have no right to maintain two actions on the same subject matter in the.same 

court, against the same defendants at the same time"). Enjoining the parties from proceeding in 

one of the cases, or consolidating the cases are other options available to deal with duplicative 

litigation. 2 

Historically, Commission Administrative Law Judges have typically consolidated 

pending contest cases with subsequently filed penalty proceedings. The practice may have been 

an outgrowth of the Commission's suggestion in Energy Fuels. However, the Commission has 

recently experienced a substantial increase in the number of contest proceedings filed. See 

Spartan Mining Co., 28 FMSHRC 892 (Order dated September 28, 2006) (ALJ). Penalty cases 

may involve as many as 20 citations or orders, all of which may be the subjects of pending 

contest cases.3 Because there is no way to predict how violations will be grouped for penalty 

assessment purposes, contest cases related to a penalty proceeding may have been assigned to 

several Commission ALJ' s. 

Consolidating such contest cases with the penalty action would not eliminate the 

duplicative litigation problem, and would necessitate the reassignment of numerous cases.4 

There does not appear to be any reason to place this administrative burden on Commission staff. 

Moreover, the captions of consolidated actions that include listings of numerous contest 

proceedings with penalty proceedings produce cumbersome documents, in which titles and 

1 Duplicative in forma pauperis proceedings may be dismissed as malicious and abusive 

pursuant to 28 U.S.C. § 1915(d). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). 

2 On procedural matters, Commission Administrative Law Judges are guided by the 

Federal Rules of Civil Procedure on questions not regulated by the Act, the Commission's 

procedural rules or the Administrative Procedure Act. 29 C.F.R. § 2700.l(b). Commission 

judges have authority comparable to federal district court judges to manage their dockets and 

deal with duplicative litigation. 30 U.S.C. § 823(d)(l), (e); 5 U.S.C. § 556; 29 C.F.R. § 2700.55. 

3 These contest proceedings were originally among a group of 48 such cases. Civil 

penalties were assessed for virtually all of the alleged violations. The operator did not timely 

contest many of the proposed assessments, which became final orders of the Commission, 

prompting dismissal of the related contest proceedings. 

4 While a split of authority has developed in the federal circuit courts, the better view is 

that expressed by the Supreme Court prior to adoption of the federal rules, i.e., consolidated 

cases retain their individual legal identities, they are not merged into a single cause. Johnson v. 

Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933). 

29 FMSHRC 117 
substance are not readily apparent due to pages of case listings. 

Staying contest proceedings until final disposition of a related penalty case would avoid 

the need to reassign cases, but would preserve the pendency of duplicative litigation and create 

docket management problems. A mechanism would have to be developed to notify Judges to 

whom the various contest cases had been assigned of the disposition of the penalty case. 

Dismissal of contest cases, without prejudice, upon filing of the penalty proceeding 

would eliminate duplicative litigation, avoid reassignment and tracking problems, and result in 

more concise and efficient case and document captioning. 

While these contest cases and the related penalty proceedings are assigned to the 

undersigned Administrative Law Judge, the advantages of dismissing them without prejudice 

outweigh the options of staying them or consolidating them with the penalty proceeding. 

Accordingly, these contest cases are hereby DISMISSED WITHOUT PREJUDICE. 

Distribution: 

Adele L. Abrams, Esq., Law Office, 4740 Corridor Place, Suite D, Beltsville, MD 20705 

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

/mh 

29 FMSHRC 118 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

February 8, 2007 

LAWRENCE L. PENDLEY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. KENT 2007-83-D 

MADI CD 2007-01 

HIGHLAND MINING COMP ANY, INC., 

Respondent 

Highland No. 9 Mine 

Mine ID 15-02709 

ORDER OF DISMISSAL 

Before: Judge Feldman 

This matter arises under section 105(c)(3) of the Federal Mine Safety and Health Act of 

1977, as amended ("Mine Act"), 30 U.S.C. § 815(c)(3), after Lawrence L. Pendley filed a 

discrimination complaint with this Commission on his own behalf on December 7, 2006, 

against Highland Mining Company, Inc. ("Highland"). Pendley's complaint followed a 

November 6, 2006, determination by the Mine Safety and Health Administration (MSHA) that its 

investigation of Pendley's complaint, filed with MSHA on October 17, 2006, did not disclose 

facts that constitute a violation of section 105( c) of the Mine Act. 

The statutory scheme pertaining to the discrimination provisions of the Mine Act 

were recently discussed by Chairman Duffy in his concurring opinion in Speed Mining, Inc., 

28 FMSHRC 773 (September 2006): 

[In section 105(c)] Congress authorizes the Commission to entertain discrimination 

complaints brought by miners when the Secretary has declined to do so. Under 

section 105(c), a miner is allowed to file a discrimination complaint ifhe believes 

an operator has retaliated against him for the exercise of his safety rights under the 

Act. The miner first files the complaint with the Secretary who, upon finding 

discriminatory conduct, files a complaint for relief with the Commission. If, 

however, on preliminary investigation, the Secretary determines that no 

discriminatory practice has occurred, the miner retains the right to bring a 

complaint on his own behalf before the Commission. 

28 FMSHRC at 785. 

29 FMSHRC 119 
Although MSHA initially, advised Pendley on November 6, 2006, that its investigation did 

not reveal evidence of discriminatory conduct of Highland, the November 6, 2006, determination 

was superceded by MSHA's December 12, 2006, determination that it was reopening its 

investigation into Pendley's complaint. Consequently, on January 12, 2007, Highland filed a 

motion to dismiss Pendley's 105(c)(3) complaint filed on his own behalf as premature because it 

lacks the jurisdictional predicate of an MSHA finding, upon investigation, that no discrimination 

occurred. Pendley has not opposed Highland's motion. 

Highland is correct. The Secretary's decision to reopen her MSHA investigation renders 

Pendley' s 105( c )(3) complaint defective because it negates the finding by MSHA that no 

discrimination occurred which is a prerequisite to the filing of a valid 105( c )(3) complaint. 

Accordingly, IT IS ORDERED that Pendley's discrimination complaint IS DISMISSED, 

without prejudice, as defective. In other words, Pendley may .refile his complaint on his behalf 

under section 105( c )(3) if the Secretary ultimately concludes that her MSHA investigation 

failed to reveal evidence of discrimination. Alternatively, if the Secretary finds evidence of 

discrimination, she shall file a discrimination complaint with this Commission on Pendley's 

behalf pursuant to section 105(c)(2) of the Mine Act. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Lawrence Pendley, P.O. Box 84, Browder, KY 42326 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park 

Plaza, Suite 310, Lexington, KY 40517 

/mh 

29 FMSHRC 120 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARFORK COAL COMP ANY, INC., 

Respondent 

January 22, 2007 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2006-934 

A.C. No. 46-09048-94552 

Slip Ridge Cedar Grove Mine 

STAY ORDER 

Citation No. 7257568 is a subject of the captioned civil penalty contest filed by Marfork 

Coal Company, Inc. (Marfork) pursuant to section 105(a) of the Federal Mine Safety and Health 

Act of 1977, as amended, {the Act), 30 C.F.R. § 815(a). Marfork's appeal of the dismissal ofits 

contest of Citation No. 7257 568 in Docket No. WEV A 2006-790-R filed under section 105( d) 

of the Act, 30 C.F.R. § 815(d), because it was defective and an abuse of process, is before the. 

Commission. 28 FMSHRC 842 (Sept. 2006) (ALJ), appeal docketed (Nov. 3, 2006); see also 

28 FMSHRC 1066 (Dec. 2006) (ALJ); Consequently, this civil penalty proceeding IS STAYED 

pending the Commission's disposition in WEV A 2006-790-R and its companion cases. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Jerald S. Feingold, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209 

Richard D. Hosch, Conference & Litigation Representative, Mine Safety and Health 

Administratrion, 100 Bluestone Road, Mt. Hope, WV 25880-1000 

Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry Square, 

Morgantown, WV 26508 

/mh 

29 FMSHRC 121 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

MICHAEL SONNEY, 

Complainant 

v. 

ALAMO CEMENT CO., LTD., 

Respondent 

January 29, 2007 

DISCRIMINATION PROCEEDING 

Docket No. CENT 2007-1-DM 

SC MD 2006-08 

1604 Plant & Quarry 

Mine ID 41-03019 

ORDER REQUESTING CLARIFICATION 

This case is before me based on a discrimination complaint filed with this Commission 

pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act ofl977, as amended, 

§ 815(c)(3) (the Act). The complaint was filed by Michael Sonney against the respondent, 

Alamo Cement Company, LTD (Alamo). Sonney's discrimination complaint filed with the 

Mine Safety and Health Administration alleges: 

On ·19 May 06 Company injured myself and another employee. I reported these 

unsafe actions to John Henderson whom took no action to correct identified safety 

hazards or develop procedures to prevent a reoccurrence. As a result of this, I was 

discharged on 21July06. 

I am seeking reinstatement. 

The following statutory and case law :framework is applicable in a discrimination 

proceeding. Section I 05( c )(1) of the Mine Act provides, in pertinent part: 

.. No person shall discharge or in any manner discriminate against . . . any miner ... 

because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's agent ... of an alleged 

danger or safety or health violation in a coal or other mine .... 

30 U.S.C. § 815(c)(l). 

Sonney has the burden of proving a prima facie case of discrimination. fu order to 

establish a prima facie case, Sonney must establish that he engaged in protected activity, and that 

29 FMSHRC 122 
the aggrieved action was motivated, in some part, by that protected activity. See Sec '.Y of Labor 

o/b/o Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980) rev'd on 

other grounds sub nom~ Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Secy of Labor o/bloRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981). 

Alamo may rebut a prima facie case by demonstrating; either that no protected activity 

occurred, or that the adverse action complained of by Sonney was not motivated in any part by 

protected activity. Robinette, 3 FMSHRC at 818 n.20. Alamo may also affirmatively defend 

against a prima facie case by establishing and that it would have taken the adverse actions 

complained of even if the protected activity had not occurred. See also Jim Walter Resources, 

920 F.2d at 750, citing with approval Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 

642 (4th Cir. 1987); Donovan v. Stafford Constr. Co., 732 F2d 954, 958-59 (D.C. Cir. 1984); 

Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). 

Currently before me are Alamo's motions to compel Sonney' s answers to interrogatories, 

and to compel Sonney' s responses to Alamo's request for production of documents. 

Commission Rule 56(b ), 29 C.F .R. § 2700.56(b ), permits discovery of any relevant, 

non-privileged matter that is admissible evidence or likely to lead to the discovery of admissible 

evidence. However, Sonney's discrimination complaint does not adequately identify the 

protected activity that serves as the basis for his complaint, the specific adverse action that he 

asserts was motivated by his protected activity, or how the alleged protected activity is connected 

to the claimed adverse action. Without additional clarification, I am unable to dispose of 

Alamo's Motion to Compel. Accordingly, Sonney IS ORDERED to provide the following 

information, in writing, within fourteen (14) days of this Order: 

(1) State, with specificity, the protected activity that serves as the basis for your 

complaint. If you are alleging that you communicated safety related concerns to 

Alamo supervisory personnel, state the names and job titles .of such personnel, and 

provide a detailed summary of the safety related communications, including the 

date and time of such communications. 

(2) In your complaint you allege that the company injured you. State, with 

specificity, the date and nature and extent of your injury, and explain how the 

injury occurred. State whether you believe the company was at fault for your 

injury and why. If you assert that you suffered ajob related injury, state whether 

you have filed a worker's compensation claim. If not, explain why. 

(3) State, with specificity, the adverse action you are complaining of. If the 

adverse action is your July 21, 2006, termination, identify the Alamo management 

personnel who informed you of your termination and the reasons given by the 

company for your separation. 

29 FMSHRC 123 
(4) Section 105(c)(3) of the Act provides that if discrimination charges are 

sustained, the Commission shall grant appropriate relief including, but not limited 

to, an order requiring reinstatement of employment with back pay and interest or 

such remedy as may be appropriate. During a January 26, 2007, telephone 

conference you stated you were not seeking back pay, reinstatement or 

reimbursement of other expenses. At that time, Alamo represented that it would 

expunge all negative references in your personnel file, if any, that are in any way 

related to the circumstances in this case. Please state with specificity the relief 

you are seeking in this proceeding. 

Sonney may provide any other information he deems relevant. 

IT IS FURTHER ORDERED that Alamo shall have ten (10) days to reply to Sonney' s 

submission. As a threshold matter, Alamo should state whether it believes the activities 

identified by Sonney constitute protected activity and why. Alamo also should state whether 

Sonney' s termination was motivated, in any part, by the protected activity alleged by Sonney. 

Finally, Alamo should state, with specificity, the date and reasons given to Sonney for his 

termination, and Alamo-should identify the management personnel who were responsible for the 

decision to terminate Sonney's employment. Alamo may provide any additional information it 

deems relevant. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

(202) 434-9967 

Michael Sonney, 405 Skyforest Drive, San Antonio, TX 78232 

Paul E. Sexton, Jr., Esq., Jeffrey L. Bryan, Esq., Fulbright & Jaworski LLP, 300 Convent Street, 

Suite 2200, San Antonio, TX 78205 

Adele L. Abrams, Esq., CMSP, Law Office of Adele L. Abrams, PC, 4740 Corridor Place, 

Suite D, Beltsville, MD 20705 

hnh 

29 FMSHRC 124 

G::l(}; U.S. GOVERNMENT PRINTING OFFICE: 2007--330-902153301