i

March 2014

TABLE OF CONTENTS

COMMISSION ORDERS

03-10-2014 ROOT CONSTRUCTION, INC. CENT 2013-336-M Page 653

03-10-2014 BINDL BAUER LIMESTONE OF

SPRING GREEN, INC.

LAKE 2013-351-M Page 656

03-10-2014 CON-AGG, INC. LAKE 2013-415-M Page 659

03-10-2014 MCELROY COAL COMPANY WEVA 2013-636 Page 662

03-10-2014 LINCOLN LEASING COMPANY, INC. WEVA 2013-726 Page 665

03-26-2014 CONTINENTAL CEMENT COMPANY,

LLC

CENT 2013-542-M Page 668

03-26-2014 SOUTH AKERS MINING, LLC KENT 2013-782 Page 671

03-26-2014 CLAS COAL COMPANY, INC. KENT 2013-796 Page 674

03-26-2014 CLEAN HARBORS ENVIRONMENTAL

SERVICES, INC.

WEST 2013-899-M Page 677

03-26-2014 EASTERN ASSOCIATED COAL, LLC WEVA 2013-944 Page 680

ADMINISTRATIVE LAW JUDGE DECISIONS

03-06-2014 BOWMAN CONSTRUCTION CO. INC LAKE 2011-1056-M Page 683

03-07-2014 SEC. OF LABOR O/B/O DAVID S.

WOOD V. HIGHLAND MINING CO.,

LLC.

KENT 2014-257-D Page 690

03-10-2014 POWER FUELS, LLC VA 2013-403 Page 695

03-17-2014 DRUMMOND COMPANY SE 2011-274 Page 720

03-19-2014 SEC. OF LABOR O/B/O CARLOS

LOPEZ V. SHERWIN ALUMINA, LLC

AND ITS SUCCESSORS

CENT 2012-237-DM Page 730

03-19-2014 NALLY & HAMILTON ENTERPRISES,

INC.

KENT 2012-1031 Page 744
ii

03-24-2014 EMERALD COAL RESOURCES, LP PENN 2009-383-R Page 754

03-27-2014 BLACK BEAUTY COAL COMPANY LAKE 2010-39 Page 778

ADMINISTRATIVE LAW JUDGE ORDERS

03-04-2014 MARK GRAY V. NORTH FORK COAL

CORPORATION

KENT 2010-430-D Page 797

03-04-2014 ELK RUN COAL COMPANY WEVA 2013-1298-R Page 805

03-06-2014 SEC. OF LABOR O/B/O J. DON

ARNOLD V. BHP NAVAJO COAL

COMPANY AND ITS SUCCESSORS

CENT 2013-541-D Page 811

03-19-2014 OAK GROVE RESOURCES, LLC SE 2013-301 Page 815

03-25-2014 ARMSTRONG COAL CO, INC. KENT 2013-185 Page 822
iii

Review was granted in the following case during the month of March 2014:

Secretary of Labor, MSHA v. Maxxim Rebuild Company, LLC, Docket Nos. KENT 2013-989. 

(Judge Miller, February 12, 2014)

No cases were filed in which Review was denied during the month of March 2014.

.

.

.

COMMISSION ORDERS
36 FMSHRC Page 652
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-336-M

v. : A.C. No. 32-00924-311309

:

ROOT CONSTRUCTION, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On March 20, 2013, the Commission received from Root

Construction, Inc. (“Root”) a motion seeking to reopen a penalty assessment that had become a

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 653
Records of the Department of Labor’s Mine Safety and Health Administration indicate

that the proposed assessment was delivered on January 16, 2013, and became a final order of the

Commission on February 15, 2013. Root asserts that its new safety director discovered the

delinquency while sorting through his predecessor’s documents. The Secretary does not oppose

the request to reopen and urges the operator to take steps to ensure that future penalty contests

are timely filed. 

Having reviewed Root’s request and the Secretary’s response, in the interest of justice,

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 654
Distribution:

Eric M. Dullea, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 655
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. LAKE 2013-351-M

v. : A.C. No. 47-03661-305923

:

BINDL BAUER LIMESTONE :

 OF SPRING GREEN, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On March 7, 2013, the Commission received from Bindl

Bauer Limestone of Spring Green, Inc. (“Bindl Bauer”) a motion seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 656
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on November 12, 2012, and

became a final order of the Commission on December 12, 2012. Bindl Bauer asserts that it

mailed a timely contest on November 12, 2012, and another copy on February 18, 2013, after

discovering that the first contest was not received by MSHA. The Secretary does not oppose the

request to reopen, and urges the operator to take steps to ensure that future penalty contests are

timely filed. 

Having reviewed Bindl Bauer’s request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 657
Distribution:

Joseph Bauer, President

Bindl Bauer Limestone

S12317 Big Hollow Rd.

Spring Green, WI 53588

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 658
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. LAKE 2013-415-M

v. : A.C. No. 20-02951-311269

:

CON-AGG, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On April 17, 2013, the Commission received from Con-Agg,

Inc. (“Con-Agg”) a motion seeking to reopen a penalty assessment that had become a final order

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 659
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on January 17, 2013, and

became a final order of the Commission on February 19, 2013. MSHA mailed a delinquency

notice on April 3, 2013. Con-Agg asserts that it mailed a timely contest on February 4, 2013. 

The Secretary does not oppose the request to reopen, but states that the only contest MSHA

received from the operator on that date was for another case. The Secretary urges the operator to

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

Having reviewed Con-Agg’s request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 660
Distribution:

Kenneth W. Norris, President

Con-Agg, Inc.

4576 S. Mackiac Trail

Saulte Ste. Marie, MI 49783

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 661
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEVA 2013-636

v. : A.C. No. 46-01437-310913

:

MCELROY COAL COMPANY :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On March 7, 2013, the Commission received from McElroy

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

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 662
Records of the Department of Labor’s Mine Safety and Health Administration indicate

that the proposed assessment was delivered on January 15, 2013, and became a final order of the

Commission on February 14, 2013. McElroy asserts that its new safety supervisor was

unfamiliar with the contest process and discovered the delinquency on February 20, 2013, after

receiving a separate assessment. The Secretary does not oppose the request to reopen and urges

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

Having reviewed McElroy’s request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 663
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 664
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 10, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEVA 2013-726

v. : A.C. No. 46-08932-292862 6RP

:

LINCOLN LEASING COMPANY, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On April 3, 2013, the Commission received from Lincoln

Leasing Company, Inc. (“Lincoln Leasing”) a motion seeking to reopen a penalty assessment

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

 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 665
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on June 26, 2012, and became a

final order of the Commission on July 26, 2012. MSHA mailed a delinquency notice on

September 10, 2012, and referred this case to the Department of Treasury for collection on

December 24, 2012. Lincoln Leasing asserts that its office administrator was experiencing

health issues which caused the failure to timely contest the assessment. Lincoln Leasing states

that it discovered the delinquency on March 13, 2013, after its counsel received a Treasury

collection notice. The Secretary does not oppose the request to reopen and strongly urges the

operator to adopt procedures to ensure that future penalty contests are timely filed. 

Having reviewed Lincoln Leasing’s request and the Secretary’s response, in the interest

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 666
Distribution:

Alexander Macia, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 667
1

 Commissioner Althen was recused from this case.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-542-M

v. : A.C. No. 23-00217-315870

:

CONTINENTAL CEMENT COMPANY, LLC :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On June 10, 2013, the Commission received from

Continental Cement Company, LLC (“Continental”) a motion seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

36 FMSHRC Page 668
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on March 14, 2013, and became

a final order of the Commission on April 15, 2013. Continental asserts that it mailed a timely

contest and its payment for the uncontested penalties to MSHA’s payment center in St. Louis,

MO. Continental discovered that MSHA had not processed the contest after receiving MSHA’s

delinquency notice, dated May 29, 2013, and promptly filed this motion to reopen. The

Secretary does not oppose the request to reopen, but notes that the payment center in St. Louis,

MO, is only a payment processing office which does not recognize or process contest forms. 

The Secretary urges the operator to take steps to ensure that future penalty contests are timely

filed and mailed to the Civil Penalty Compliance Office in Arlington, VA. 

Having reviewed Continental’s request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

36 FMSHRC Page 669
Distribution:

Gwendolyn K. Nightengale, Esq.

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

1909 K Street NW, Suite 1000

Washington, DC 20006

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 670
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. KENT 2013-782

v. : A.C. No. 15-18436-313936

:

SOUTH AKERS MINING, LLC :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On May 21, 2013, the Commission received from South

Akers Mining, LLC (“South Akers”) a motion seeking to reopen a penalty assessment that had

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

§ 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 671
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on February 19, 2013, and

became a final order of the Commission on March 21, 2013. South Akers’ consultant asserts

that he never received the proposed assessment and discovered the delinquency after receiving

MSHA’s late notice, dated April 11, 2013. The Secretary does not oppose the request to reopen,

but notes that MSHA received a contest form from the consultant, dated April 2, 2013, which

was 12 days after the final order date. MSHA mailed a delinquency notice on May 6, 2013. The

Secretary urges the operator and its consultant to take steps to ensure that future penalty contests

are timely filed. 

Having reviewed South Akers’ request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 672
Distribution

Gerald W. McMasters

South Akers Mining

630 Washington Avenue

Paintsville, KY 41240

mcmastersg@bellsouth.net

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 673
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. KENT 2013-796

v. : A.C. No. 15-19325-305763

:

CLAS COAL COMPANY, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On May 24, 2013, the Commission received from Clas Coal

Company, Inc. (“Clas”) a motion seeking to reopen a penalty assessment that had become a final

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 674
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on November 13, 2012, and

became a final order of the Commission on December 13, 2012. Clas asserts that it mailed a

contest on December 15, 2012, but its payment for the uncontested citations was mistakenly

applied to this contested citation No. 8269442. The Secretary does not oppose the request to

reopen, but states that the check MSHA received at its St. Louis, MO, payment center, did not

include a contest form. The Secretary urges the operator to take steps to ensure that future

penalty contests are timely filed and mailed to the Civil Penalty Compliance Office in Arlington,

VA. 

Having reviewed Clas’ request and the Secretary’s response, in the interest of justice, we

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 675
Distribution:

Tom W. Dean

Accountant

Clas Coal Co., Inc.

P.O. Box 420

Coeburn, VA 24230

twdean4bama@hotmail.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 676
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2013-899-M

v. : A.C. No. 02-00024-317010 RUZ

:

CLEAN HARBORS ENVIRONMENTAL :

 SERVICES, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On June 17, 2013, the Commission received from Clean

Harbors Environmental Services, Inc. (“Clean Harbors”) a motion seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 677
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on March 28, 2013, and became

a final order of the Commission on April 29, 2013. Clean Harbors asserts that it mistakenly

believed that it did not need to contest the proposed assessment because it had previously

contested the underlying citations. Clean Harbors’ counsel discovered the delinquency after

receiving MSHA’s late notice dated May 16, 2013. Clean Harbors states that it now understands

that a separate notice must be submitted to contest a proposed assessment and has taken steps to

ensure that this mistake does not happen again. The Secretary does not oppose the request to

reopen. 

Having reviewed Clean Harbors’ request and the Secretary’s response, in the interest of

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 678
Distribution:

Dale B. Rycroft, Jr., Esq.

The Rycroft Law Firms, PLLC

2929 N. Power Rd., Suite 101

Mesa, AZ 85215

drycraft@rycraftlaw.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 679
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

March 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEVA 2013-944

v. : A.C. No. 46-05295-313257

:

EASTERN ASSOCIATED COAL, LLC :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On May 28, 2013, the Commission received from Eastern

Associated Coal, LLC (“Eastern”) a motion seeking to reopen a penalty assessment that had

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

§ 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

36 FMSHRC Page 680
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on February 6, 2013, and

became a final order of the Commission on March 8, 2013. Eastern asserts that its safety

manager received the proposed assessment on February 14, 2013, and believed that his contest

on March 15, 2013 was timely. The Secretary does not oppose the request to reopen, and notes

that MSHA received a contest form postmarked March 15, 2013, and a payment for the

uncontested penalties, by check dated March 19, 2013. The Secretary urges the operator to

adopt procedures to ensure that future penalty contests are timely filed. 

Having reviewed Eastern’s request and the Secretary’s response, in the interest of justice,

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

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

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

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

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 681
Distribution:

Jonathan R. Ellis, Esq.

Steptoe & Johnson, PLLC, 8th, Floor

Bank One Center, P.O. Box 1588

Charleston, WV 25326-1588

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 682
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

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

March 6, 2014 

 

DECISION 

Appearances: Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois; Dan L. Venier, Conference and Litigation 

Representative, Mine Safety and Health Administration, U.S. Department 

of Labor, Duluth, Minnesota, for Petitioner; 

 Deborah Bowman, Bowman Construction Company, International Falls, 

Minnesota for Respondent 

Before: Judge Manning 

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

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Bowman Construction Co., Inc., (“Bowman Construction” or “Respondent”) pursuant to 

sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 

820 (the “Act” or “Mine Act”). The parties introduced testimony and documentary evidence at a 

hearing held in Duluth, Minnesota. In lieu of filing post-hearing briefs, the parties presented 

closing argument at the hearing. 

Though primarily engaged in the construction industry, Bowman Construction owns and 

operates the Rainier Quarry (“Quarry”) on its 500 acre property in International Falls, Minnesota 

(the “Property”). (Tr. 45). Most of the activity at the Property relates to Respondent’s 

construction business. At the Quarry, Bowman Construction engages in drilling, blasting, and 

processing aggregate with a crusher, a wash plant, and various screening devices. (Tr. 21). 

Bowman Construction contested the three citations at issue in this case because it does not 

believe that MSHA had jurisdiction over the areas cited. 

I. THE CITATIONS

 On June 13, 2011, MSHA Inspector John Koivisto inspected the Property. He was 

accompanied by Darwin Johnson, a foreman at the Property. Deborah Bowman, the office 

manager for Bowman Construction, testified that Bowman Construction has existed for 75 years. 

MSHA typically inspects the Quarry once each year and Ms. Bowman testified that, until the 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

BOWMAN CONSTRUCTION CO. INC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2011-1056-M 

A.C. No. 21-02393-263615 

Mine: Rainier Quarry 

36 FMSHRC Page 683
present inspection, MSHA only inspected areas in and around the Quarry. She contends that the 

inspector strayed into areas of the Property that are not subject to MSHA jurisdiction. 

 Inspector Koivisto issued Citation Nos. 6560616 and 6560617 for conditions he 

discovered upon a Maxx Super 512 trommel. One citation alleges that guarding was required on 

both sides of a tail pulley on the trommel and the other alleges that the back side of the trommel 

was not posted to warn people that they could be hit by falling material. (Exs. G-1, G-5). 

Citation No. 6560618 was issued for a tripping hazard in a shed. (Ex. G-9). Bowman 

Construction is not contesting the conditions described in the citations or the inspector’s 

determinations as to gravity and negligence. The Secretary proposed a penalty of $100.00 for 

each citation. For the reasons discussed below, I find that the trommel was subject to MSHA 

jurisdiction at the time of the inspection but the Secretary did not establish that MSHA had 

jurisdiction over the shed. 

II. BASIC LEGAL PRINCIPLES 

Section 4 of the Mine Act provides, in part, that “each coal or other mine . . . shall be 

subject to the provisions of this Act.” 30 U.S.C. § 803. Section 3(h)(1) of the Act, in pertinent 

part, defines “coal or other mine” as: 

(A) an area of land from which minerals are extracted . . . (B) 

private ways and roads appurtenant to such area, and (C) lands, 

excavations, underground passageways, shafts, slopes, tunnels, and 

workings, structures, facilities, equipment, machines, tools, or 

other property . . . on the surface or underground, used in, or to be 

used in, or resulting from, the work of extracting such minerals 

from their natural deposits in nonliquid form, or . . . used in or to 

be used in, the milling of such minerals, or the work of preparing 

coal or other minerals . . . . In making a determination of what 

constitutes mineral milling for purposes of this Act, the Secretary 

shall give due consideration to the convenience of administration 

resulting from the delegation to one Assistant Secretary of all 

authority with respect to the health and safety of miners employed 

at one physical establishment. 

30 U.S.C. §802(h)(1) (emphasis added). 

The Senate Committee that drafted the Mine Act noted: “What is considered to be a mine 

and to be regulated under this Act [shall] be given the broadest possible interpretation, and it is 

the intent of this committee that doubts be resolved in favor of inclusion of a facility within 

coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, 

Comm. on Human Res., Legislative history of the Federal Mine Safety and Health Act of 1977 

(“Legis. Hist.”) at 602. 

To further clarify questions of jurisdictional reach, the Secretary of Labor facilitated an 

interagency agreement (“Interagency Agreement”) between MSHA and the Occupational Safety 

36 FMSHRC Page 684
and Health Administration (“OSHA”). 44 Fed. Reg. 22827 (April 17, 1979). This agreement 

also provides procedures to resolve general jurisdictional questions between the two agencies. 

III. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citations issued at the Trommel

Bowman Construction owned and operated a Maxx Super 512 trommel. A trommel is a 

large, round, horizontal drum that turns as a short conveyor loads material into it. (Exs. G-6, R-3 

at 3). The drum is a screen and the desired material falls through the screen onto a belt that 

transports the material onto a stack. Larger material is separated from the desired material and 

falls out of the open end of the drum. The trommel is typically used by Bowman Construction to 

process black dirt at other locations. When processing black dirt, the trommel is not subject to 

Mine Act jurisdiction because it is only removing roots and rocks from top soil. During the 

inspection, the trommel was on the Property but it was not located at or near the Quarry. (Exs. 

G-17, R-1). 

Inspector Koivisto testified that he issued Citation No. 6560616, alleging a violation of 

section 56.14107(a), after noting that neither side of the 12” diameter self-cleaning tail pulley on 

the trommel was guarded. (Tr. 14-15). He issued Citation No. 6560617, alleging a violation of 

section 56.20011, after finding that a dangerous zone below the trommel screen was not properly 

barricaded, which allowed rocks to fall 15’ onto the ground below. (Tr. 24). Inspector Koivisto 

testified that he noted a round 4” rock that had fallen into the danger zone. (Tr. 24-26). 

Inspector Koivisto testified that he could not cite the trommel if it was processing 

exclusively recycled material. (Tr. 17). He recognized that MSHA would only have jurisdiction 

over the trommel when it processes virgin material. (Tr. 17). When asked what the trommel 

processed the day of the inspection, Inspector Koivisto testified that Johnson described the 

material as “bank run” from offsite. Inspector Koivisto’s examination of the trommel led him to 

believe that the material fed into the trommel was pit run material, which afforded jurisdiction to 

MSHA. (Tr. 20-23, 26, 38, 74). Darwin Johnson told him that at least some of the sand the 

trommel discharged would be taken to the wash plant for further processing. (Tr. 17). Inspector 

Koivisto testified that MSHA has jurisdiction over wash plants. (Tr. 38-39). After examining 

the trommel and talking to Johnson, Inspector Koivisto determined that he had jurisdiction to 

issue the two citations. 

 Deborah Bowman emphasized that mining was a very small part of Respondent’s 

construction business, occupying only 5 acres of the 500 acre Property. (Tr. 41-42, 45). She 

further testified that Bowman Construction employs two miners, each for 120 days per year. (Tr. 

82-83). She testified that the trommel exclusively processed recycled material and that the sand 

from the trommel was not taken to the wash plant. (Tr. 45-56, 61-62). On cross-examination, 

Bowman could not explain why Johnson described the material as “bank run” or why he told 

Inspector Koivisto that the wash plant would be processing the sand. (Tr. 63-65). Bowman also 

noted that she had no record of what the trommel processed that day. Id. 

36 FMSHRC Page 685
The Secretary argues that MSHA jurisdiction over the trommel is proper because the 

trommel processed virgin material and the sand exiting the trommel would be sent to the wash 

plant for further processing. The Secretary relies upon the conditions that the inspector observed 

as well as statements made by Johnson. The material being processed appeared to consist of the 

“crude crust of the earth” rather than recycled material and the material exiting the trommel was 

sand. (Interagency Agreement at Appendix A; Ex. G-6). Bowman Construction’s stockpile of 

recycled material was a considerable distance from the trommel. In addition, Johnston told the 

inspector that the pit run material was fed into the trommel and that at least some of the sand was 

to be taken to the wash plant. 

Bowman Construction contests both of these points. It argues that the trommel is outside 

of MSHA jurisdiction because the trommel processed exclusively recycled material. (Tr. 47). 

The maps submitted by both parties and Inspector Koivisto’s statements all confirm that the 

trommel was not located near the Quarry. (Tr. 61-62; Exs. G-17, R-1). Bowman Construction 

also argued that the trommel was not processing material from the Quarry. Ms. Bowman 

testified that only angular basalt is found on the Property. (Tr. 44; G-7). The presence of a 

round rock, therefore, proves that the materials in the trommel came onto the Property from a 

construction site. (Tr. 46). Similarly, Respondent argued that its pit is not a natural source of 

sand, so the sand exiting the trommel originated elsewhere. (Tr. 44-46). Bowman explained the 

origin of these materials by noting that Respondent often recycles sidewalks and excess material 

from landscaping sites. (Tr. 45, 49). Bowman Construction did not provide specific details 

about what recyclable material was on the property that day. Finally, Respondent argues that it 

would not have had any reason to wash the sand produced by the trommel. 

 Discussion and Analysis

I find that the Secretary established that MSHA had jurisdiction to inspect the trommel. 

Section 3(h)(1) of the Mine Act defines a mine in broad terms. The Act asserts jurisdiction over 

the extraction process and also “milling” and “preparing” minerals. 30 U.S.C. § 802(h)(1). 

Although the Mine Act does not define “milling,” the Interagency Agreement defines it as: “the 

separation of one or more valuable desired constituents of the crude [crust of the earth] from the 

undesirable contaminants with which it is associated.” 44 Fed. Reg. at 22829. The term “crude” 

is defined to mean “any mixture of minerals in the form in which it occurs in the earth’s crust.” 

Id. Thus, MSHA jurisdiction exists, generally, when valuable minerals are separated from 

earthen material. 

The Interagency Agreement also provides examples of milling procedures. Among many 

other processes, MSHA jurisdiction exists where minerals are “sized” (that is, separated into 

groups by size) or “washed” (that is, cleaned by flowing water). 44 Fed. Reg. at 22830. 

Bowman Construction did not present evidence to establish that the trommel processed 

exclusively recycled material other than Ms. Bowman’s vague statement that Respondent often 

recycles material from construction sites. Indeed, she testified that the material that was being 

fed into the trommel came from the “ground” at an offsite location. (Tr. 46-47). It is irrelevant 

that the material did not originate in Bowman Construction’s Quarry. The evidence establishes 

that the material screened by the trommel was excavated from the crude crust of the earth. There 

36 FMSHRC Page 686
is no evidence to establish that the material being screened was recycled material from another 

source.1

 

The evidence persuades me that Bowman Construction’s trommel engaged in milling and 

sizing at the time of the inspection and was therefore subject to MSHA jurisdiction. As stated 

above, trommels are rotating cylindrical screens. When a loader or conveyor drops material onto 

the trommel, the sand sifts through the screen onto a conveyor below, while large rocks, roots, 

and other material remain captured by the screen. As defined by the Interagency Agreement, this 

process of separating constituents from a mixture of minerals from the earth’s crust triggers 

MSHA jurisdiction. 

In consideration of the foregoing, I AFFIRM Citation Nos. 6560616 and 6560617. 

B. Citation issued at the Shed. 

Bowman Construction also owned a small shed that was a considerable distance away 

from the Quarry. (Ex. R-2 at 1 and 2). According to Ms. Bowman, the shed stores equipment 

and supplies used in Respondent’s construction business. The jurisdictional issue is whether 

miners entered the shed. 

Inspector Koivisto testified that he issued Citation No. 6560618, alleging a violation of 

section 56.20003(a), for tripping hazards in what he called a “sign-out” shed located on the 

Property. (Tr. 28). He noted that the clear path inside the shed was only 16 inches wide and that 

a distracted employee could easily trip upon the items in the shed. (Tr. 29-31). Inspector 

Koivisto testified that Johnson told him that miners entered the shed every day to fill out their 

time sheets and get supplies. (Tr. 29-30). Although Inspector Koivisto recognized that he did 

not have jurisdiction over the construction employees, he issued the citation because “miners 

were entering” the shed. Id. 

Bowman testified that she visited the shed many times and that no mining equipment or 

supplies are stored therein. (Tr. 59-61). Instead, she stated that the shed exclusively stores 

construction equipment, rendering it beyond the reach of MSHA jurisdiction. (Tr. 51-52). She 

testified that miners do not fill out any paperwork in the shed and noted that the shed is on the 

opposite side of the property from the Quarry. (Tr. 50-53, 59-61). She did not know why 

Johnson told the inspector that miners use the shed. (Tr. 69-71). 

Discussion and Analysis

Inspector Koivisto testified that Johnson told him that miners fill out their time sheets or 

retrieve items from the shed daily. (Tr. 29-30). Bowman contradicted this testimony by 

testifying that the shed only stores construction equipment and that no miners use the shed. (Tr. 

 1

 The Secretary also contends that MSHA jurisdiction is proper irrespective of the 

material processed by the trommel because the wash plant processed the sand from the trommel. 

I do not need to reach this issue of fact because it is clear that the trommel screened virgin 

material from the earth. 

36 FMSHRC Page 687
59-61). The photos presented by Inspector Koivisto show what appears to be construction 

equipment. (Ex. G-10, 11,12, 13, 14). Further, the parties agree that the shed is a considerable 

distance from the mining area. (Tr. 33-37). 

The Commission has held that facilities which are available to miners as well as 

employees who are not miners fall under the jurisdiction of the Mine Act. See W.J. Bokus 

Indus., 16 FMSHRC 704 (Apr. 1994). I have followed this precedent in other cases. See e.g.

Titan Constructors, Inc., 34 FMSHRC 403 (Feb. 2012) (ALJ). 

I find, however, that the evidence presented at the hearing does not establish that miners 

enter the shed and the Secretary, therefore, did not fulfill his burden to show that MSHA had 

jurisdiction over the shed. There is no evidence, other than the inspector’s hearsay testimony, 

that the shed stores equipment or supplies used in mining. The shed is a considerable distance 

from the Quarry and the associated screening and crushing equipment. (Exs. G-17, R-1). It 

seems odd that miners employed by Respondent would be required to travel to this shed to fill 

out any paperwork. Miners as well as other Bowman Construction employees pass by the scale 

house/office every day when they enter and exit the Property. Miners would not appear to have 

any reason to pass by shed. It also does not appear that the shed would be the type of structure 

where records are kept. (Exs. G-10, 11, 12, R-3). 

The only evidence the Secretary offered to establish jurisdiction over the shed was the 

hearsay testimony of Inspector Koivisto. In contrast, physical evidence observed by the 

inspector and Ms. Bowman’s own testimony helped establish MSHA jurisdiction over the 

trommel. Without an opportunity to examine Johnson and ask him questions, I cannot 

determine whether the shed was subject to inspection by MSHA. It is not clear exactly what 

Johnson told the inspector and Johnson could not be questioned about this issue.2

 The Secretary 

bears the burden of proof and I cannot uphold Mine Act jurisdiction over the shed based solely 

upon the inspector’s hearsay testimony that miners enter the shed to sign out at the end of their 

shift or get supplies. Citation Nos. 6560618 is VACATED. 

 It is important for Bowman Construction to understand that I am not holding that MSHA 

does not have the authority to inspect the subject shed. I only hold that in this particular case, the 

Secretary was unable to prove MSHA jurisdiction over the shed. If miners enter the shed, even 

if only occasionally for short periods of time, MSHA would have the authority to inspect it. 

IV. APPROPRIATE CIVIL PENALTIES 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. Bowman Construction is a small operator that only employs two 

miners, both of whom are employed in such capacity on a seasonal basis. Bowman Construction 

did not receive any citations or orders in the 15 months preceding the subject inspection. The 

citations were abated in good faith. The penalties assessed below will not affect the company’s 

 2

 I recognize that hearsay is generally admissible in Commission proceedings, but I 

believe it imprudent to hold that the Secretary established MSHA jurisdiction in this case solely 

on the basis of hearsay. I reach this conclusion even though Johnson was a management 

employee. 

 

36 FMSHRC Page 688
ability to continue in business. The gravity and negligence findings are set forth in the citations. 

The penalties proposed by the Secretary are appropriate for the two citations for the trommel. 

V. ORDER 

 

Citation Nos. 6560616 and 6560617 are AFFIRMED and Citation No. 6560618 is 

VACATED. Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), 

Bowman Construction Company, Inc., is ORDERED TO PAY the Secretary of Labor the sum 

of $200.00 within 30 days of the date of this decision.3

 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 

Room 844, Chicago, IL 60604-1502 (Certified Mail) 

 

Dan L. Venier, Mine Safety and Health Administration, U.S. Department of Labor, 515 W. 1st

Street, Suite 333, Duluth, MN 55802-1302 (Certified Mail) 

Deborah Bowman, Bowman Construction Company, Inc., P.O. Box 151, International Falls, MN 

56649-0151 (Certified Mail) 

 3

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

36 FMSHRC Page 689
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 Pennsylvania Avenue, N.W. 

Washington, DC 20004-1710

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949

March 7, 2014 

 

SECRETARY OF LABOR, MSHA, 

on behalf of DAVID S. WOOD, 

 Complainant 

 v. 

HIGHLAND MINING CO., LLC., 

 Respondent 

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 TEMPORARY REINSTATEMENT 

 PROCEEDING 

 Docket No. KENT 2014-257-D 

 MADI CD 2014-08 

 No. 9 Mine 

 Mine ID 15-02709 

 

 DECISION AND ORDER OF TEMPORARY REINSTATEMENT

Appearances: 

Jennifer Booth Thomas, Esq., Malia Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, Nashville, Tennessee, for the Complainant; 

Jeffrey K. Phillips, Esq., Candace B. Smith, Esq., Steptoe & Johnson, Lexington, Kentucky, for 

the Respondent 

Before: Judge Moran 

This case is before the Court on an application for temporary reinstatement filed on 

February 11, 2014, by the Secretary of Labor, acting through the Mine Safety and Health 

Administration, against Highland Mining Co., LLC, pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act (AMine Act@ or AAct@) of 1977, 30 U.S.C. ' 815(c)(2). 

The Application seeks an Order temporarily reinstating David S. Wood to his former position with 

the Respondent at its No. 9 Mine, pending the final hearing and disposition of the discrimination 

complaint. On February 13, 2014, Respondent filed a request for a hearing on the application. 

Thereafter, pursuant to 29 C.F.R. ' 2700.45, a hearing was held in Henderson, Kentucky on March 

5, 2014. 

For the reasons which follow, for the purposes of temporary reinstatement, the Court finds 

that the Secretary presented sufficient evidence at the hearing to establish that Mr. Wood engaged 

in protected activity. It is undisputed that he was thereafter terminated from his employment. 

Applying the applicable standard of review for such proceedings, the Court finds that a nexus 

between that activity and the alleged discrimination was established and upon review of the entire 

record, concludes that the complaint was not frivolously brought. 

Accordingly, the Court orders that, effective with the date of this decision, Mr. David S. Wood be 

36 FMSHRC Page 690
reinstated to his former position with the Respondent at its No. 9 Mine, pending the final hearing 

and disposition of the discrimination complaint. 

Applicable Law

The law pertaining to temporary reinstatement proceedings is well-established. As the 

Commission noted in Sec=y of Labor on behalf of Ward v. Argus Energy WV, LLC, AUnder section 

105(c)(2) of the Mine Act, >if the Secretary finds that [a discrimination] complaint was not 

frivolously brought, the Commission, on an expedited basis upon application of the Secretary, 

shall order the immediate reinstatement of the miner pending final order on the complaint.= 30 

U.S.C. ' 815(c)(2). The Commission has recognized that the >scope of a temporary reinstatement 

hearing is narrow, being limited to a determination by the judge as to whether a miner's 

discrimination complaint is frivolously brought.= See Sec'y of Labor on behalf of Price v. Jim 

Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 (11th Cir. 1990). The 

Mine Act's legislative history defines the >not frivolously brought= standard as indicating that a 

miner's >complaint appears to have merit.= S. Rep. 95-181, at 36 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978). The >not frivolously brought= standard reflects a Congressional 

intent that >employers should bear a proportionately greater burden of the risk of an erroneous 

decision in a temporary reinstatement proceeding.= Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 

738, 748 (11th Cir. 1990) ("JWR"). . . . Courts and the Commission have likened the >not 

frivolously brought= standard set forth in section 105(c)(2) with the >reasonable cause to believe=

standard applied in other statutes. Id. at 747 (Athere is virtually no rational basis for distinguishing 

between the stringency of this standard and the >reasonable cause to believe= standard@); Sec'y of 

Labor on behalf of Markovich v. Minnesota Ore Operations, USX Corp., 18 FMSHRC 1349, 

1350, 1352 (Aug. 1996). In the context of a petition for interim injunctive relief under the 

National Labor Relations Act (ANLRA@), 29 U.S.C. ' 160(j), courts have recognized that 

establishing >reasonable cause to believe= that a violation of the statute has occurred is a >relatively 

insubstantial= burden. See Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 

(6th Cir. 2001) (citations omitted). Similarly, at a temporary reinstatement hearing, the Judge 

must determine >whether the evidence mustered by the miner[] to date established that [his or her] 

complaint[] [is] nonfrivolous, not whether there is sufficient evidence of discrimination to justify 

permanent reinstatement.= JWR, 920 F.2d 744. As the Commission has recognized, >it [is] not the 

judge's duty, nor is it the Commission's, to resolve the conflict in testimony at this preliminary 

stage of the proceedings.= Sec'y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 

FMSHRC 153, 164 (Feb. 2000) (Marks and Beatty, dissenting).@ 34 FMSHRC 1875, 1877-1878 

(Aug. 2012). 

 

36 FMSHRC Page 691
Findings and Analysis 

At the March 5, 2014 hearing, the Complainant, David S. Wood was the sole witness. For 

the limited purpose of the temporary reinstatement proceeding,1

 the Court found Mr. Wood to be a 

credible witness. He testified that on October 14, 2013 he made a safety complaint to supervisor 

Darren Darnell, declining to ride with the supervisor on a mine golf cart, because Mr. Darnell was 

extremely angry with him over an apparent misunderstanding concerning the means by which he 

was to be transported to the Number 1 Unit that day. In the supervisor=s agitated state, Mr. Wood 

testified that he did not feel safe riding in the cart with him. According to Mr. Wood, at one point 

during the angry outburst from Darnell, the supervisor threatened that he would have Wood fired if 

he did not get on the golf cart. The Complainant=s work refusal, refusing to ride in the golf cart 

with the irate supervisor at the wheel, is the alleged protected activity invoked. Once Mr. Darnell 

calmed down, Mr. Wood then did ride with him. Tr. 15-25. Following the incident, Mr. Wood 

continued to work at the mine for the ensuing two weeks, through October 25, 2013. Thereafter, 

on October 28th, Mr. Wood had a family medical issue, involving an illness that was affecting his 

entire family. He called in to work, per the mine=s policy for illness, one hour before his shift, 

leaving a voice mail message at the number. In connection with a visit to his doctor on October 

31st, which was his second doctor=s visit in connection with his own illness, Mr. Wood was advised 

that, if he felt sufficiently improved, he could return to work on November 2nd. Tr. 26-30, and GX 

2. 

When Mr. Wood appeared for work on November 1st for his shift which was to begin on 

November 2nd, he was advised by the third shift foreman that he could not work and that he would 

have to speak with the mine=s human resources director. Tr. 28, 32. He then called the mine and 

was advised that he was to come to the mine on November 5th for a meeting. He did so and was 

advised at that time that he was being Asuspended with intent to discharge.@ Tr. 33. He was then 

told to appear for a second meeting at 9:00 a.m. on November 6th. He did so appear for the 

second meeting and saw supervisor Darnell that morning. Mr. Wood stated that Darnell Athrew a 

slur@ at him and asked if he was looking for a job. Tr. 35. The meeting then followed and the 

Complainant was told that he violated the mine=s leave policy for illnesses and that he was being 

terminated for that failure. Tr. 40-41. Following his termination, Mr. Wood filed for 

unemployment compensation and was approved for those benefits. About a week after his 

termination, Mr. Wood learned that another employee had a similar issue related to the mine=s 

illness policy and what constitutes a satisfactory excuse for such absences. The difference was 

that the other employee was not terminated. This prompted Mr. Woods to call MSHA, around 

December 21st or the 22nd, and then he presented his account of the events leading up to his 

termination, including the altercation with Darnell and the illness issue. 

 1

 Conflicts in testimony, in this case, raised only putatively in the context of 

cross-examination of the Complainant as the sole witness at the hearing, are not to be resolved in 

a temporary reinstatement proceeding. To do otherwise would transform the proceeding into a 

hearing on the merits. Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 

717, 719 (July 1999). 

36 FMSHRC Page 692
Following Mr. Wood=s testimony on direct, the Respondent was afforded a full opportunity 

to conduct a cross-examination of his account of the events. Tr. 60-112. The Court then heard and 

considered the parties= closing statements.2

 Tr. 114-119. Following that, the Court announced 

that it had made its determination and offered that it was willing to state it on the record or, if the 

parties preferred, it would defer its determination announcement until the issuance of its written 

decision. The parties opted for the Court to disclose its decision at the proceeding. This decision 

memorializes that determination. 

Remembering that the temporary reinstatement proceeding is a very limited inquiry, the 

Court stated its finding that it was not a frivolously brought complaint. In the context of hearing 

testimony only from Mr. Wood, the Court finds that he was a forthright and credible witness in 

relating his telling of the events in issue. Having made that baseline determination, it is noted that 

no conflicting testimony was presented and that, in any event, credibility determinations, had there 

been conflicting accounts, would not be appropriate to resolve at this stage. The facts in the 

record support the conclusion that Mr. Wood engaged in protected activity when he made his work 

refusal. This is especially true, when considered in the full context of the testimony, regarding 

issues about the safety of the golf carts and how they were driven, together with the testimony 

about the very agitated state of Mr. Darnell. 

The Court took note that, in essence, the Respondent was contending that the 

Complainant=s discharge was for failure to follow its sick leave policy and, implicitly that Mr. 

Cook=s safety complaint was invented after the fact. The Respondent has also noted that the 

Complainant continued to work for two weeks after the incident with Mr. Darnell. The former 

contention is not ripe for a determination in the context of a temporary reinstatement. As to the 

latter argument, in addition to the impropriety of finding whether that was the genuine basis for his 

dismissal or not, it is well-recognized that although an intervening period of time could form the 

basis to support a non-discriminatory ground for a dismissal, such a brief interval is sufficient to 

support a finding of an association between the protected activity and the adverse action. Put 

more succinctly, two weeks is an insufficient interval of time to separate the protected activity 

from the adverse action. See, Sec. of Labor on behalf of Williamson v. CAM Mining, LLC, 31 

FMSHRC 1085, 1090 (Oct. 2009) and Sec. of Labor on behalf of Norman Deck v. FTS Int=l 

Proppants, LLC, 2012 WL 4753952 (Sept. 2012). 

 

 2

 The Respondent cited the decision of a fellow administrative law judge for its persuasive 

value in the matter at hand, while acknowledging that it has no precedential effect. However, 

upon inquiry by the Court, Respondent could not state whether the cited decision, Brannon v. 

Panther Mining, 31 FMSHRC 1533 (Nov. 2009) (ALJ), was a temporary reinstatement 

proceeding or a full discrimination proceeding on the merits. The Court, in preparing this 

decision, found that it was not a temporary reinstatement matter, thus negating even the persuasive 

impact of it. 

36 FMSHRC Page 693
ORDER

Based on the foregoing, the Court having found that the Complainant=s application for 

temporary reinstatement was not frivolously brought, the Court ORDERS that Mr. David S. 

Wood be reinstated to his former position at the same rate of pay and with all other benefits that he 

enjoyed prior to his discharge, as of the date of this decision. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Jennifer Booth Thomas, Esq., and Malia Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

Jeffrey K. Phillips, Esq., and Candace B. Smith, Esq., Steptoe & Johnson, PLLC, One Paragon 

Centre, 2525 Harrodsburg Road, Suite 300, Lexington, Kentucky 40504 

David S. Wood, 558 S. Seminary St., Madisonville, KY 42431 

36 FMSHRC Page 694
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

March 10, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

POWER FUELS, LLC,

 Respondent

POWER FUELS, LLC,

 Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent

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CIVIL PENALTY PROCEEDING

Docket No. VA 2013-403

A.C. No. 44-07303-323400

Mine: Power Fuel Blending Terminal

CONTEST PROCEEDINGS:

Docket No.: VA 2013-312-R

Citation No.: 8204724; 4/9/13

Docket No.: VA 2013-313-R

Citation No.: 8204725; 4/9/13

Docket No.: VA 2013-353-R

Citation No.: 8274726; 4/9/13

Mine: Power Fuel Blending Terminal

DECISION

Appearances: Anthony D. Jones, Esq., U.S. Department of Labor, Office of the Solicitor, 

Arlington, Virginia, for the Secretary

Wade W. Massie, Esq., PENN, STUART & ESKRIDGE, Abingdon, Virginia, for

the Respondent

Before: Judge Koutras

36 FMSHRC Page 695
STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of

1977, 30 U.S.C. 802, et Seq. (2000), hereinafter the “Mine Act” concerns three Section 104(a)

significant and substantial (S & S) citations served on the respondent on April 9, 2013, for

alleged violations of the cited safety standards found at 30 C.F.R. 77.410(c), and 77.1605(b). 

The Secretary petitions the Court for a civil penalty assessment of $300, for the alleged

violations.

In addition to the civil penalty issues presented in this case, the respondent challenges

and contests the Secretary’s asserted jurisdiction based on its contention that the respondent is

not a mine operator, and that its facility is not engaged in any coal mine working activities that

fall within the scope and intent of the Mine Act.

Pre-trial Ruling

This case was initially designated as a Simplified Proceeding pursuant to the

Commission’s rules at 29 C.F.R. 2700.100, et. seq. Subsequently, the Secretary filed a motion to

discontinue the “simplified” designation and to continue the matter under conventional rules. In

support of the motion, the Secretary cited the jurisdictional issues raised by the respondent that

involve complex issues of law and fact. The motion was granted pursuant to Rule 2700.104,

without objection by the Court during a pre-trial telephone conference with the parties (Tr. 5-6)

As a result of the Court’s ruling as discussed during the aforementioned conference, the

respondent file a supplemental disclosure statement regarding the nature of its blending

activities, and the Secretary filed a pre-hearing statement with respect to the issues in this matter

including arguments in support of Secretarial (MSHA) jurisdiction. These filings and exchanges

are part of the record.

Stipulations

(1) The parties agreed to the admission into evidence of copies of the three contested

citations, except as to jurisdiction (Ex. G-1, G-2, G-3; ALJ-1).

(2) The parties agreed that the proposed civil penalty assessment for the citations will not

adversely affect the respondent’s ability to continue in business.The parties agreed

that a terminalling agreement between the respondent and Virginia Electric Power

Company, d/b/a Dominion Power Company, is a true and authentic copy in effect at

the time the citations and may be admitted in evidence (Ex. G-4). 

At the conclusion of the hearing, the parties agreed that the respondent would be

classified as a small mine under the regulations and the respondent’s manager confirmed that

twelve employees work at the site (Tr. 139).

36 FMSHRC Page 696
The Alleged Violations

The two Section 104(a) S & S Citation Nos. 8204724 and 8204726, April 9, 2013, citing

C.F.R. 77.1605(b), describe defects in the braking systems on two contractor trucks that haul

coal into the respondent’s facility “under the direction of the mine operator” (Ex. G-1, G-3). The

inspector determined the negligence level as “low” for both citations and the gravity level as

“reasonably likely” and “permanently disabling” injuries.

The braking defects described for Citation No. 8204724, concern a steering axle brake

out of adjustment on the truck tractor, and an inoperative rear axle brakes on a trailer being

pulled by the tractor, with no braking force supplied by the brake pushrods that could not move. 

The braking defects described for Citation No. 8204726, in part state that the left truck steering

axle brake was out of adjustment with a continuous air leak through a defective air brake value

above the center trailer axle being pulled by the truck.

Citation No. 8204725, April 9. 2013. Citing 30 C.F.R. 77.410(c), states that the backup

alarm provided on the cited contractor truck was not being maintained in a functional condition

in that when the driver placed the vehicle in reverse, the backup alarm failed to function due to a

broken wire. The truck is used to haul coal into the facility “under the direction of mine

operator” (Ex. G-2). The inspector determined the negligence as “low”, and the gravity level as

“reasonably likely” and “permanently disabling” injuries.

Mandatory safety standard 30 C.F.R. 771605(b), requires mobile haulage equipment to

be equipped with adequate brakes. Section 77.410(c) requires mobile equipment such as

“tractors” and “trucks” to be equipped with a warning device that gives an audible alarm when

put in reverse and be maintained in functional condition.

The Secretary’s Testimony

MSHA Inspector Thomas R. Bower testified that he has served in that capacity since

January 7, 2007, and he described his education, including a bachelor’s degree from the

University of Virginia at Wise and his prior mining experience from 2001 through 2006 (Tr. 20-

21). He confirmed that his initial visit to the respondent’s facility was December 12, 2012, and

that he conducted regular mine safety and health inspections over a period of 12 different days

and was familiar with the work that is done there (Tr. 22). He observed contractor coal trucks,

trailers, and tractors hauling coal, refuse materials, gob coal, and “midds”, a coal byproduct from

a preparation plant, coming into the site. The materials were weighed and sampled and then

taken to designated stockpile areas. The truck drivers were told where to dump their loads by

the loader operators and the foreman of the site (Tr. 22-23).

He further explained that the coal was stored, blended, and loaded as needed for

Dominion’s power plant, then taken back out, weighed again, sampled again, and then shipped to

the power plant (Tr. 23). He stated that front-end loaders were used to blend the coal from one

stockpile to another that were marked for each type of analysis “so they’ll know how to blend

it.” He confirmed that between the time the coal arrives at the site and the time it leaves, it is

36 FMSHRC Page 697
stored and blended in preparation for shipment to the power plant (Tr. 24). He confirmed that he

began his second inspection at the site on April 1, 2013, and clarified that he was not at the site

for a total of five months, and that his inspections last on and off approximately two to three

weeks at a time and that two inspections were performed during two six-month intervals, and

that he was at the site over a period of several month several times (Tr. 25).

Mr. Bower identified Exhibit G-1 as Citation No. 8204724, citing a violation of 30

C.F.R. 77.1605(b), for braking defects on a contractor’s tractor trailer coal truck. He stated that

there were numerous braking defects as stated in the condition or practice noted in item #8 of the

citation, on both the tractor and the trailer that he considers as one unit, and he summarized the

condition as “faulty brakes” (Tr. 26-27). He confirmed that he discussed the citation and his

reasons for issuing it with the site foreman, Mike Hendrickson, and informed him that the truck

was traveling the same roadways that mine personnel used and exposed them to the hazards

while the truck was operated on the property (Tr. 27). The citation reflects that the truck was

taken out of service pending repairs.

Mr. Bower stated he based his “S & S” determination on the fact that the cited truck and

tractor unit had a 25 percent loss of braking power that exceed the guidelines fixed by the

Commercial Vehicle Safety Alliance that any braking loss over 20 percent reaches its out-ofservice criteria (Tr. 27-28, 30). He believed that two persons would be likely exposed to a

hazard in the event of any accident, namely the driver and another miner, as well as others who

may be on the roadway (Tr. 28-29).

Mr. Bower stated that he based his “reasonably likely” injury determination on his

accident investigator experience involving truck accidents under similar defective conditions that

resulted in disabling back and traumatic injuries, and broken bones. He agreed these examples

are “worst case scenarios” and that lesser injuries were conceivable (Tr. 30-31). He confirmed

that foreman Henderson was upset about the conditions of the truck brakes and that he called the

trucking company and told them that they had to do better with their equipment (Tr. 31). He

confirmed that he based his low negligence finding on the fact that the foreman may travel with

the trucks at times during his shift but he did not directly oversee the truck maintenance, and that

he also cited the contractor truck operator for the same violation (Tr. 32-33).

Mr. Bower stated that he also issued S & S Citation No. 8204725, a violation of 30

C.F.R. 77.410(c), because the backup alarm provided on a contractor trailer truck failed to

function when the transmission was placed in reverse and the alarm did not sound (Ex. G-2, Tr.

33). He stated he determined an injury was reasonably likely because the truck traveled in

congested areas, it was observed backing up in congested areas, and it had an obstructed rear

view pulling a 34 foot trailer. The truck backs up in congested areas where numerous people and

other pieces of equipment are present.

Mr. Bower determined that any injury would be disabling if anyone was backed over by a

150,000 pound unit, and this included crushing injuries. He believed one person among those

operating a loader or sampling the coal would be affected, and he also concluded it was an S & S

violation because the cited trucker was in congested areas and it was observed backing up in

36 FMSHRC Page 698
those areas (Tr. 34). He based his low negligence on the same reason as the prior cited violation

because the foreman was not responsible for truck maintenance and confirmed that he also cited

the contractor truck operator for the same violation (Tr. 34-35). 

Mr. Bower confirmed that he issued Citation No. 8204726 citing a violation of 30 C.F.R.

77.1605(b), because the same truck previously cited for a defective backup alarm had a brake out

of adjustment on the tractor and a continuous air leak and defective air valve on the trailer being

pulled as a unit (Ex. G-3; Tr. 38-39). He explained that the loss of air pressure would result in a

loss of braking force to stop the unit because the brakes would not work as they are designed (Tr.

39).

Mr. Bower stated that he based his reasonably likely injury determination on the fact that

a combination of a brake out of adjustment and a continued air leak makes it reasonably likely

that a brake failure would occur and cause a wreck. He explained that the truck hauls heavy

loads over inclined roads, traveling with other vehicles, and that any loss of brakes could result

in a truck runaway over the top of other vehicles resulting in crushing injuries. Under these

circumstances, he concluded that the violation was S & S and two persons, the truck driver and

any other vehicle driver would be affected (Tr. 39-40). He confirmed that his low negligence

determination was based on the same reason for all three citations, namely, the fact that the

foreman was not directly responsible for any truck maintenance, but did travel sometime during

the shift in the same area traveled by the trucks (Tr. 41).

 On Cross-examination, Mr. Bower stated that his inspections were regular inspections,

and that even though he is a surface inspector and accident investigator, he was not investigating

any accidents when he issued all of the citations. He made no decisions whether the

respondent’s site was a mine within the meaning of the Mine Act and was simply following his

instructions to cite any violations that he found (Tr. 44-45). He confirmed that when he issued

the citations, he was not aware of the agreement between the respondent and Dominion, and did

not interview anyone at Dominion about the respondent’s job performance or operations. He

explained that he spoke with the respondent’s foreman, Mike Hendrickson, who was at the site

on a daily basis, and Mr. Walter B. Crickmer, who has later identified as the manager of Power

Fuels, LLC, the respondent (Tr. 45, 79).

Mr. Bower stated that the contractor trucks that he cited were inbound trucks that were

bringing solid fuel from any producing facility to the respondent’s site. He confirmed that a

defective truck entering the site may not necessary, in and of itself, constitute a violation. 

However, pursuant to MSHA’s policy, he is required to make a determination whether or not the

respondent’s personnel are exposed to any hazard, and if not, the violation would be attributable

to the contractor if it did not involve the respondent’s employees (Tr. 46-47).

Mr. Bower confirmed that he issued the violations to the respondent because trucks

entering its site with defective brakes and a backup alarm potentially involved the respondent’s

employees. He did not know whether the trucks were contractors for the respondent or

contractors for the producing mine entities. He further stated that while he was not aware who

36 FMSHRC Page 699
contracted the trucks, he was obligated to inspect them during his inspection at the site and that

the question of who contracted them was not relevant (Tr. 48-49). 

Mr. Bower did not know who owned the materials hauled into the site by the trucks, and

did not believe this was relevant. He estimated that 30 – 40 trucks enter the site daily and that

during one of the 12 days of his inspections, he may have randomly selected 10 to 12 trucks to

inspect. He does not inspect every truck that comes onto the site and has inspected trucks that

did not have any violations. As far as he knew, all of the cited trucks arrived safely while

traveling inbound to the site (Tr. 50-51).

Mr. Bower confirmed that his statement in the citations that the trucks are “under the

direction of the mine operator”, referred to the respondent’s foreman, Mr. Hendrickson, and

because the trucks were on the site (Tr. 51). He stated that he has also observed some wood

chips biomass product at the site and that it is handled by the same employees with the same

equipment used for handling the solid fuel (Tr. 52-53). In reply to further questions, Mr. Bower

stated that the material blending that he observed consisted of “coal, midds, gob, the refuse

material blended together”, coal and coal byproducts. He observed wood chips that were stored

and never witnessed it being blended with those products (Tr. 53-54). He explained that the coal

blending was accomplished by using bulldozers to stockpile the materials and front-end loaders

moving it from one stockpile to another (Tr. 55).

Supervisory Special Investigator, Robert D. Clay testified that he has been employed

with MSHA for 22 years and is responsible for violations of section 110 of the Act, and other

duties as assigned by District 5, in Norton, Virginia. He detailed his prior 16 years of mining

experience in the private sector, including mine foreman and equipment operator positions in

surface and underground mines. He also performed duties with MSHA as an inspector and field

office supervisor, and was familiar with the respondent’s facility (Tr. 57-59).

Mr. Clay stated that he first became familiar with the respondent’s site after an inspector

informed the assistant district manager that he observed coal trucks coming off the state road that

were not going directly to Dominion’s power plant and were turning off somewhere else. He

was asked to investigate the respondent’s operation because there was no known preparation

plant at that location. He went to the location on May 22, 2012, and from his vantage point off

the property on a country road he observed coal trucks going on the property. He could only

observed what he believed was a small sampling unit that appeared to be sampling whatever

went through the gate, and a small scale (Tr. 59-60).

Mr. Clay stated that he was approached by the respondent’s foreman, Bobby Ketron, who

invited him on the property and took him to the mine office consisting of a small trailer or

building. Mr. Kentron then took him to a “yard” area that he called a “blending yard” where Mr.

Clay observed signs posted indicating “There was a yard there, a blending facility, signs coming

onto the property”. He also observed end loaders, trucks coming on the property, a coal

sampling unit, scales, and a water tank on an elevated roadway (Tr. 60-61). Mr. Kentron told

him that coal trucks would deliver coal to the yard, dump it and that end loaders would blend the

36 FMSHRC Page 700
coal together for a certain specification. It would then be stored and eventually transported to

Dominion’s power plant directly across the small county road (Tr. 61).

Mr. Clay identified Exhibits G-6 and G-7 as photographs of two signs stating “Virginia

City Fuel Blending Terminal, 1⁄4 mile on right”, and “Blend Yard Area A”, and assumed they

were created by the respondent. It was his understanding that the respondent referred to the

facility as a blending terminal (Ex. G-6). He stated that what was stored in Area A appeared to

be a pile of coal and the sign on the property pointed to the “blend yard storage Area A” (Ex. G7). He explained that during his visit to the facility he observed several trucks stopping at a

sampling area and a sample being removed from the coal truck trailers that drive across a set of

scales. The tractor and trailer are then driven to yard storage A where the coal is dumped and

pushed together and blended with the front end loaders. The blended coal is placed back in the

truck with the same loaders and travel across a set of scales again and travel off the property that

he assumes was taken across the road to Dominion’s power plant (Tr. 65-66).

On cross-examination, Mr. Clay stated that he could observe portions of the respondent’s

property while parked by the road, and more of it after he was invited in by Mr. Ketron. He

stated that the Dominion power plant was adjacent to the respondent’s site across the road, and

the trucks he observed were turning onto the respondent’s site. He confirmed that he did not

conduct any inspection on Dominion’s property (Tr. 67-71).

Mr. Clay stated that he was not aware of any other power plants in MSHA’s District 5,

and that he was only requested to inspect the Dominion location. He speculated that in the event

he observed the trucks turning into that plant, he probably would have inspected that area if

requested to do so by his supervisor (Tr. 73). He confirmed that he was not aware of any

discussions within his district concerning any “debate” about MSHA’s jurisdiction over the

respondent’s site, or any other sites (Tr. 74-75). He confirmed that his inspection did not include

any interviews with anyone on Dominion’s property, or the producers of the materials that were

trucked into the respondent’s site because he did not know who they were. He confirmed that he

did not observe the handling of any biomass at that site because he was not sure what it was (Tr.

76).

Walter B. Crickmer, the respondent’s co-owner and site manager, stated that the site is

located on 106 acres across the road from the Virginia City Hybrid Energy Center (VCHEC),

owned and operated by the Virginia Electric and Power Company that is commonly known as

Dominion Power, of simply “Dominion” (Tr. 79-81). He identified Exhibit R-1 as an aerial

photograph of the power plant, as well as the respondent’s site labeled “Power Fuels LLC Fuel

Handling Facility”, and he was unaware of any citations issued on the plant property (Tr. 82-89).

Mr. Crickmer stated that he has a degree in Geology and is a geologist with previous coal

mine experience that began in 1970, and served as president of the Clinchfield Coal Company

that operated several mines and preparation plants. He also worked for the Pittston Coal

Company drilling gas wells and was engaged in other enterprises processing wood chips and

rebuilding mine equipment (Tr. 120, 122). For the past ten years he and several partners have

owned and operated a business called Gobco that reclaims gob piles, and for the first eight years

36 FMSHRC Page 701
it supplied gob coal products to several companies such as Alpha, Taco, United, and Warscho. 

During that time, the company won many state reclamation awards and a Federal Department of

the Interior award for its tree and “green history” (Tr. 121-122).

Mr. Crickmer described the Dominion plant as a 600 megawatt facility placed in

operation two years earlier at the same time the respondent’s site was placed in operation. He

stated the plant was designed differently from most coal-fired power plants run with high BTU

coal content and relies on a very critical BTU low, medium 7500 BTU, or as low as 6500-8000

product that changes daily for the size of the coal product that is going by conveyor belt into the

furnaces that produce heat for its generation station. In order to maintain quality fuel, it is

critical to maintain the low BTU coal content that supplies the furnaces (Tr. 81-82). 

Mr. Crickmer stated that the plant burns 10,000 tons of fuel material a day. An average

8,000 tons is supplied by the respondent’s facility that transports it by trucks to the site, and

2,000 tons is trucked directly to the plant from other locations (Tr. 89). Mr. Crickmer described

the fixtures and facilities on the respondent’s property as a terminal office, a set of scales, an

auger sampler owned by a contractor. The respondent owns the office and scales, as well as a

small block building for storing grease, lubricants and work parts, and a pump house for a water

tank used for road dust control. He further confirmed respondent’s ownership of four storage

yards, a sediment pond, and a $40,000 bath house facility required by MSHA (Tr. 90-91). He

described the equipment as four rubber-tired end loaders equipped with computerized bucket

scales, a dozer, a water truck, street sweeper, a road maintenance truck, a mobile stacking

conveyor, and a pickup truck (Tr. 92).

Mr. Crickmer stated that the respondent handles different kinds of fuels purchased by

Dominion, including wash coal from preparation plants, run-of-mine-coal, coal refuse, and gob,

biomass wood products. Also included is wood products and biomass consisting of trees,

“week” and brush that is ground to a certain specification and blended in with solid fuel at

Dominion’s furnace. He stated “it’s just wood that’s been ground up, which is critical and it has

to be sized properly to work in the plant” (Tr. 93).

Mr. Crickmer described the Dominion Power Plant as “a very special” operation

designed to burn coal, biomass, blended in with limestone for emission control”. He explained

how the materials are processed and burned with the special specified fuel because all of the

materials have to meet the proper specifications to react properly in the furnace burn chamber

that may not otherwise be used at other power plants, and this includes coal refuse, gob, and

wood (Tr. 94-95). He stated that the respondent currently receives coal or gob from

approximately 15 to 16 Kentucky and Virginia producers. He confirmed that the respondent

works for Dominion Power under the stipulated terminalling agreement (Tr. 96-98; Ex. G-4).

Mr. Crickmer stated that the respondent does not, and never has, owned any of the coal

related materials delivered by contractor trucks to its site. Pursuant to the agreement with

Dominion Power, the respondent is paid so much a ton for the materials as weighed at the scales. 

Further, all of the respondent’s operational costs, including the wages of the foreman and hourly

employees, except for the manager, are fully reimbursed by Dominion to the respondent. All

36 FMSHRC Page 702
fuel materials delivered to the site are paid for by Dominion directly to the producers (Tr. 100-

101).

Mr. Crickmer explained that on any given day, the fuel materials ordered by Dominion

Power to be trucked to the respondent’s site are weighed and recorded by the computerized

scales and sampled by a third party contracted by the respondent, and then trucked to any of four

storage yard areas (A through D), where it is dumped, segregated, and stored into one particular

pile for particular producers. The fuel delivered for that day is kept segregated for that day

because it has a certain quality. This procedure is followed for all 16 producers who delivered

the fuel materials that day. Dominion Power and the respondent would receive computerized

reports reflecting the exact fuel quality for the fuel delivered that day (Tr. 102-103; Ex. R-3). 

Mr. Crickmer explained the fuel blending process that takes place as follows at (Tr. 103):

So we keep that fuel segregated for that one particular day because it has a certain 

quality. And we do this for all 16 producers, whoever we have coming that day. And

then we get all the qualities the next day. And then Dominion directs us daily to take this

quality coal, so much of this material and so much of that material and so much of this

material and blend it together by one bucket of this, two buckets of that. Literally is says

that. You have the sheets there that come from Dominion Power that says that into a

pile.

In the event the blending samples reflect a need to improve the quality of the material, it

will be blended as described by Mr. Crickmer at (Tr. 104):

So we will re-blend the entire pile again based upon their direction, add so much more of

this pile to it, be it a higher BTU or a lower BTU, because that is so critical for the firing

in the plant, this blended fuel spec, that it has to be right on the mark. So Dominion

makes that call. And sometime we’ll reblend a pile two or three times to get it exactly

what they want before they take it across the street.

Mr. Crickmer stated after the fuel materials are blended at the desired quality range, the

respondent uses two or three contractor truckers who are allowed on Dominion Power’s property

to deliver the desired daily tonnage ranging from 8,000 to 15,000 tons across the street to the

plant. He stated that on any normal operating day the respondent will handle 300 to 500 tractor

trailers coming in and out of its site and 150 to 200 truckloads a day will go to the plant (Tr. 104-

105).

Mr. Crickmer identified Exhibit R-2 as a survey map of the respondent’s property

showing the locations of the four fuel material storage areas A through D, the truck scales, and

the auger samples (Tr. 105-106). He further identified Exhibit R-3, as a typical example of a

blending instruction sheet, provided to the respondent from Dominion every day, and sometimes

bi-daily, identifying a particular storage pile and instructions to “Mix this blend, and it tells you

exactly, and the moisture” (Tr. 107-108). Further examples are stated as follows at (Tr. 108):

36 FMSHRC Page 703
THE WITNESS: No, that’s okay. This right here says “Please blend 908A –which is our

product – “5 buckets of Omega with 4 buckets of Gobco/ETI for pile Aa.”

BTU should be 7950, 39 percent ash, 5.9 percent moisture. “I have attached a

spreadsheet with calculations.” In yard B –-

Mr. Crickmer cited an example of blending calculations made by the respondent

with respect to the fuel purchased by Dominion from all of its producers as

follows: (Ex. 3, Tr. 109).

THE WITNESS: This is how many buckets. There’s 207.98 buckets in that pile. This is

the percent. And in the blended pile they want two buckets of that. They want three

buckets of Pevler. They want three buckets of IBCS and one bucket of South East. So it

actually gives us a 6.5 moisture, a 39 ash, a .9 sulfur, and 7600 BTU. Now, these are all

critical things for that power plant’s furnace. That BTU has to be right on the money. 

That sulfur has to be within the limits required by the law. And, of course, ash is, you

know, a byproduct of the BTU. (Ex. R-3; Tr. 109).

Mr. Crickmer further identified information received daily by the respondent from all of

the coal fuel producers with respect to the different quality specifications utilized during its

blending process. He stated the information is tracked by Dominion’s computers “so that all

these products are properly blended together” (Tr. 112). He explained that Dominion’s plant is

not a standard coal-fired plant that utilizes fuel that is blown into a furnace. He described

Dominion’s plant as “a fluidized bed plant” that utilizes other materials such as limestone for its

furnace reaction chambers to insure the required critical combustion and the removal of

emissions (Tr. 110-111). He stated that OSHA, EPA, and “DEQ” have jurisdiction over the

plant’s operations (Tr. 111).

Mr. Crickmer believed that the coal fuel delivered to the respondent’s site has been

crushed and sized, and he assumed that the producers of the coal have done this prior to its sale

to Dominion in order to meet its specifications. No coal crushing, sizing, or washing is done at

the respondent’s site. He stated that “all we do is take different fuels purchased by Dominion,

which they own, and we blend it to whatever specifications they want for the next day to burn at

the plant on two days”. He confirmed that the coal meets Dominion’s preparatory size

specifications, and if not, Dominion would reject the coal until it was properly sized (Tr. 114). 

He explained that the Dominion plant is unique in that all fuel material is trucked in daily, and

when its inventory is full, it only has a nine to ten day supply, whereas most coal-fired plants

have 60 to 90 day inventory. He stated that the respondent provides a service to Dominion by

storing an additional eight days of purchased fuel on its site (Tr. 115).

Mr. Crickmer stated that the respondent has never been in the coal business, and that its

site was designed to perform the daily work that he has described. He confirmed that he was

familiar with the work performed at coal preparation plants and was responsible for such a plant

when he worked at Clinchfield Coal. He explained that a preparation plant washes, screens, and

sizes coal pursuant to the specified specifications from the customers it services (Tr. 122-123).

36 FMSHRC Page 704
Mr. Crickmer stated that the respondent does nothing to improve the quality of any fuel

product, and it never screens, washes, or sizes it “other than take exactly what’s been brought in

there by Dominion and put it in a blend to fuel their furnace” (Tr. 123). He explained that the

coal was crushed and screened by the coal producers to meet Dominion’s BTU, sulfur, or

moisture specifications. He stated that the respondent furnishes approximately 80% of the fuel it

handles and delivers directly to the Dominion plant, and that 20% of the material does not come

to the respondent’s site and is delivered directly by truckers ordered by Dominion (Tr. 123-124).

Mr. Crickmer stated that the “fine tuning” of the “spec fuel” that arrives at the

respondent’s site is not done by any of the coal producers, and the respondent receives a variety

of coal blends purchased by Dominion that is to be blended before it can be delivered to its plant. 

He explained that coal blending, sampling, and analysis takes place at the respondent’s site daily,

and changes daily “six days a week all year long” (Tr. 124).

Mr. Crickmer stated that in the event the respondent did not do the blending work,

Dominion would have to it because the plant requires the desired fuel specification (Tr. 125). 

He explained that when he established the respondent’s site he consulted with the State

Department of Mining Minerals and Energy and informed its director that the respondent “would

work for Dominion to handle trucks, store their fuel, re-blend it to spec and haul it across the

street”. He stated that he was informed that he was not a coal mine, did not need a mine license,

was not a wash plant, and was not subject to the State’s jurisdiction, and was referred to OSHA

signs, brochures, and forms for visitors to sign, and operated that way until MSHA appeared (Tr.

125-126).

On cross-examination , Mr. Crickmer confirmed that the respondent blends coal on

behalf of Dominion, stores it at the respondent’s facility and loads and delivers it across the

street to the Dominion plant as directed. He confirmed that the stipulated Terminalling

Agreement defines its work responsibilities on behalf of Dominion with respect to the blending

and delivery of the coal to the plant. He stated that the respondent is a custom blending facility

for Dominion and that the work it performs is done to meet Dominion’s requirements and

specifications (Tr. 127-128). He characterized this work and the term “custom” as follows:

A. It makes a buyer’s spec fuel that really changes daily or weekly. And they 

change it based upon the heat rate of the furnace. It’s a custom fuel. And we do that

work for Dominion. We make that spec fuel for them with fuels that they own. They

buy fuels from many people and we take those fuels and we make that spec fuel. (Tr.

128).

Mr. Crickmer further confirmed that “solid fuel” is defined by the agreement as coal,

coal refuse, and coal midds or gob (Tr. 129). He stated that the biomass handled by the

respondent is covered by a separate agreement and it is the only product that it has ever

purchased and owned for that business. He confirmed that it provides biomass for Dominion and

ground end sized 1,000 truckloads of wood materials in 2012, to Dominion outside of the

agreement (Tr. 129-130). 

36 FMSHRC Page 705
Mr. Crickmer explained that the respondent is not responsible for any erroneous blend or loss in

a stockpile, and commented “that is all 100 percent Dominion”, and “if they told me to blend it

this way and it came out something they didn’t like, it’s not my responsibility. I only do what

I’m told to do”. He confirmed that Dominion can perform re-blending at its site through its

reclaim systems that senses sulfur, moisture, or ash in both piles (Tr. 137-138). 

The Jurisdictional Issues

The Secretary’s Arguments

The Secretary relies on the testimony of MSHA Inspector Thomas C. Bower, who

confirmed his site inspections in December 2012, and April 2013, when he observed the loaded

coal trucks transporting the coal onto the property where it was weighed, sampled, and stored in

designated areas, and blended using front-end loaders that mixed and combined different types

of coal and stored in separate stockpiles to create a custom coal blend.

The Secretary further cites the testimony of MSHA Special Investigator Robert D. Clay,

who initially observed coal trucks entering the site, and his further observations after he was

invited onto to the property by site foreman Bobby Ketron. Mr. Clay observed front-end loaders,

weighing scales, a coal sampling unit, a water tank, and several coal trucks coming onto the

property. He testified that Mr. Kentron informed him that coal trucks delivered coal to the

blending yard where front-end loaders blended the coal together to meet certain specifications. 

The blended coal was stored and eventually transported to the Dominion Power Plant across the

street from the respondent’s facility.

The Secretary further relies on the testimony of Walter B. Crickmer, the respondent’s coowner and facility manager who confirmed the Terminalling Agreement between the respondent

and Dominion Power specifying the services provided by the respondent, including the blending

of solid fuel in accordance with the requirements of the customer, and the loading of trucks and

shipment of solid fuel to Dominion’s plant (Tr. 127-128); Exhibit G-4, pg. 4.301(a)(iv)(v)). 

The Secretary cites the definition of “solid fuel” in the Agreement as “coal, coal refuse,

coal midds, or gob” and refers to Dominion Power as the “Customer” of Power Fuels, LLC (Ex.

G-4, at 1, 2; Tr. 129). The Secretary cites Mr. Crickmer’s testimony that the respondent receives

daily instructions, sometimes bi-daily, from Dominion Power that directs it on how to create a

custom coal blend that meets Dominion Power’s specifications as noted in Exhibit R3.

The Secretary further cites Mr. Crickmer’s testimony that it was “critical” for the

respondent to make a custom coal blend that meets Dominion’s precise specifications in order

for the power plant furnace to operate correctly and his explanation that “All we do is take

different fuels purchased by Dominion, which they own, and we blend to whatever specifications

they want for the next day burn at the power plant” (Tr. 114). The Secretary refers to the

following testimony and admissions by Mr. Crickmer:

36 FMSHRC Page 706
1. The respondent “provides a big service” for Dominion because it stores large

quantities of coal, and that since Dominion can only store up to eight days of powerplant-ready coal at its plant, storage at the respondent’s facility reduces Dominion’s

storage needs on its own premises (Tr. 115, 126).

2. The respondent’s facility has four different storage areas where trucks are routinely

loaded with blended coal and taken to an auger sampler that tests the coal to insure it

meets Dominion’s specifications and transported across the street to the Dominion

Power Plant (Tr. 102-103, 126; Ex. G-7).

3. The respondent “is a custom blending facility” for Dominion Power, blends coal that

it receives from approximately 16 different producing mines, and that the work it

performs is done for the purpose of meeting Dominion’s specifications and

requirements (Tr. 97, 126, 128).

 The Secretary asserts that under the plain language of the Mine Act, the respondent’s

blending facility is a “mine” for purposes of Mine Act enforcement jurisdiction. The Secretary

cites Section 4 of the Act that each “coal or other mine” whose products affect commerce shall

be subject to the Act, and that “Coal or other mine” is defined in Section 3(h)(1) of the Mine Act

to include:

(C) lands . . . structures, facilities, equipment, machines, tools, or other property . . . used

in, or to be used in, or resulting from, the work of extracting such minerals from their

natural deposits in non-liquid form . . . or used in, or to be used in, the milling of such

minerals or the work of preparing coal or other minerals, and includes custom coal

preparation facilities (30 U.S.C. 802(h)(i)).

The Secretary cites the definition of “work of preparing the coal” at Section 3(I) of the

Mine Act as:

. . . the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading

of bituminous coal, lignite or anthracite, and such other work of preparing coal as is

usually done by the operator of the coal mine (30 U.S.C. 802(i)).

The Secretary asserts that the record in this case makes it abundantly clear that the

respondent is a custom coal preparation facility that is “used in” the “work of preparing coal”,

and that it undisputed that it mixes, blends, loads, weighs, samples, and stores bituminous coal

for the sole purpose of meeting the specifications and requirements of its customer Dominion

Power. The Secretary concludes that these coal preparation activities confer Mine Act

enforcement jurisdiction over the respondent’s blending terminal, and that a plain reading of

Mine Act Section 4 requires the conclusion that the terminal operation is a “custom preparation

facility” within 30 U.S.C. 802(h)(1). In this regard, the Secretary cites Mr. Crickmer’s

admission that the respondent “is a custom blending facility” for its customer Dominion Power

(Tr. 128).

36 FMSHRC Page 707
The Secretary cites the Commission’s decision in Mineral Coal Sales, Inc., 7 FMSHRC

615 (1985), affirming my jurisdictional finding over a commercial loading facility, a railway

siding that the Secretary states performed coal preparation function similar to the work

performed by the respondent in the instant matter, namely the blending of different types of coal

together to meet customer’s specifications and loaded the blended coal for transport activities are

specifically listed in the Mine Act as constituting “the work of preparing the coal”. In that case,

although the Commission stated that merely performing one or more of the statutorily

enumerated activities is not solely determinative of whether the facility is properly classified as a

“mine”, it nonetheless noted that the inquiry must also focus on the nature of the operation

performing the activities and whether the work is “undertaken to make coal suitable for a

particular use or to meet market specifications”.

The Secretary emphasizes that the Commission ultimately concluded that the operations

taking place at Mineral Coal Sales, when viewed as a collective whole, indicated that the facility

was a “mine” because it performed preparation work to make coal suitable for customer

specifications, and rejected Mineral Coal Sales’ contention that its work of merely blending

different types of coal from different stockpiles under the direction and control of another entity

does not constitute coal preparation. The Secretary concludes that the preparation work

performed at the Mineral Coal Sales facility is virtually identical to the blending work performed

by the respondent and falls within MSHA’s jurisdiction.

The Secretary states that assuming arguendo that the court finds that Sections

802(h)(1)(C) and (i) are ambiguous with respect to whether they allow MSHA to assert

enforcement jurisdiction over a custom coal preparation plant that engages in further preparation

of previously processed coal to meet the specifications of the coal’s ultimate consumer, the

Secretary’s reasonable interpretation of the Act is entitled to deference. Citing Secretary v.

National Cement Co., 573 F.3d 788 (D.C. Cir. 2009I) (deferring to MSHA’s finding of Mine Act

jurisdiction over a road leading up to a cement plant), and Secretary v. Carolina Stalite Co., 734

F.2d 1547 (D.C. Cir. 1984) (deferring to MSHA’s jurisdictional determination that a slate gravel

processing facility that did not extract slate but processed it for commercial purposes was a

“mine” within the meaning of the Mine Act.

The Secretary argues that his interpretation that the work performed at the respondent’s

blending facility constitutes the “work of preparing the coal” is reasonable and entitled to

deference, citing the cases of Mineral Sales, Inc. and Kinder Morgan Operating, supra with

“strikingly similar facts to the case as bar” with respect to the undisputed statutorily enumerated

coal preparation activities performed by the respondent that include the “mixing, storing, and

loading of bituminous coal” functions specified in 30 U.S.C. 802(i).

The Secretary maintains that his interpretation of 30 U.S.C. 802(h)(1)(C) and 802(i) is

reasonable and that by enacting the Mine Act Congress sought to prevent “unsafe and

unhealthful conditions and practices in . . . coal or other mines,” 30 U.S.C. Section 801(b), and

that it furthers the safety and health goals of the Act to cover, to the maximum extent consistent

with the statutory terms, workers subject to the conditions, practices and hazards associated with

coal preparation, and that deference to the Secretary’s interpretation is additionally warranted

36 FMSHRC Page 708
because 30 U.S.C. 802(h)(1)(C) “expressly authorize(es) the Secretary to define what

constitutes a “mine.” Otis Elevator Co. v. Secretary, 921 F.2d 1285, 1288 n.1 (D.C. Cir. 1990).

The Secretary states that the respondent introduced no facts or evidence to support its

contention that MSHA has no jurisdiction over its blending facility and rejects its principal

defense that its mixing, storing, and loading work is not the type of coal preparation work that

“is usually done by the operator of the coal mine”, and as such should be treated like the ultimate

consumer of the coal instead of a mine operator. The Secretary responds to the respondent’s

contention that if it did not perform the custom blending work for Dominion, Dominion would

have to perform these coal preparation activities for itself , and takes the position that the

respondent seeks to be treated as the ultimate consumer of the coal, instead of the contractor it

actually is that prepares the coal to meet the specifications of the ultimate consumer, and that its

argument has no basis in fact or logic and should be rejected.

In response to the respondent’s suggestion that the Secretary’s jurisdictional

interpretation would expose any place that mixes, stores, or loads coal to MSHA’s enforcement

scrutiny, the Secretary states that simply storing or loading coal would not subject the coal enduser to MSHA’s jurisdiction. The Secretary concludes that his asserted enforcement jurisdiction

is consistent with the Commissions analysis in Elam, supra, and the reasoning stated in Mineral

Coal Sales, supra, and Kinder Morgan Operating, supra.

The Secretary further cites the Third Circuit Federal Court of Appeals decision in RNS

Service, Inc. v. FMSHRC, 115 F.3d 182 (1997), concerning a site that processed coal refuse that

was delivered to a co-generation facility generating electricity and steam where it was further

prepared in a useable form by its ultimate consumer. The Court affirmed the Commission’s

functional analysis holding that the loading and transportation of the coal that occurred at the site

were sufficient to render the site a mine, and rejected the assertion by RNS Services that the

Commission made a per se ruling that simply loading and transporting the coal rendered the site

a “mine”.

With respect to the facts supporting the alleged violations, the Secretary relies on the

testimony of Inspector Bower as previously noted, including the joint stipulated evidentiary

admission of the citations were received for the record, without objection, except as to

jurisdiction. Further, the Secretary takes the position that if MSHA’s jurisdictional claims are

affirmed, the citations and proposed civil penalty assessments should also be affirmed..

The Respondent’s Arguments:

The respondent argues that the critical question in this case is whether any mixing,

storing, or loading of coal is subject to the jurisdiction of the Act, as contended by the Secretary,

or whether the mixing, storing, and loading must be the type of work usually performed by the

operator of a coal mine. The respondent asserts that if the Secretary is correct that any mixing,

storing, or loading of coal is sufficient to establish MSHA jurisdiction, then any consumer who

mixes, stores, or loads coal is the operator of a coal mine. Conceding the fact that the Mine Act

confers broad jurisdiction on MSHA, the respondent maintains that it does not go that far.

36 FMSHRC Page 709
The respondent argues that the work normally performed by coal consumers is not

subject to the Mine Act, and that in the instant case the respondent is doing blending work for

the consumer of the coal, not for the producers of the coal. The respondent maintains that the

work that it performs is the type of work that is generally performed by a consumer, and the fact

that the consumer has contracted with the respondent to perform this work, instead of doing it

with its own employees, does not change the character of the work or allow MSHA to assert

jurisdiction. 

The respondent relies on several Commission and ALJ jurisdictional issue decisions in

support of its case. Addressing the critical issue with respect to the connection that must exist

between the work in question and the usual work of mining, the respondent cites Secretary of

Labor v. Oliver M. Jr., Co., 4 FMSHRC 51 (1982I), a case involving an operator of a

commercial dock on the Ohio River, and affirming an ALJ decision that Elam’s facility was not

a “mine” subject to Mine Act jurisdiction.

The respondent states that although Elam crushed and loaded coal onto barges, the

Commission held that the dock was not a “coal or other mine,” and that just because it handled

coal it did not mean it was engaged in “the work of preparing the coal.” To fall within the

definition, the Commission concluded that the work must involve more than the “breaking

crushing, sizing, cleaning, washing, drying, measuring, storing, (or) loading” of coal. The work

must be the kind of work “usually performed by the mine operator engaged in the extraction of

the coal or by custom preparation facilities . . . “.

With regard to Secretary of Labor v. Mineral Coal Sales, Inc., 7 FMSHRC 615 (1985),

the respondent points out that the Commission addressed a different situation involving a tipple

operator at a siding that stored, mixed, crushed, sized, and loaded coal in order to make it

“suitable for a particular use or to meet market specifications.” The company processed the coal

for brokers, not consumers, and the Commission held that the company’s operations were

subject to the Act.

Citing my decision in Marion Docks, Inc. v. Secretary of Labor, 10 FMSHRC 1598

(1988), a case involving a coal loading tipple facility that loaded and shipped coal by river

barges to several utility customers who purchase the coal from brokers, the respondent points out

that the facility was not the consumer of the coal, and did not work for the consumer of the coal,

and only worked for brokers who sold the coal to utilities.

The respondent cites my decision in Secretary v. Consolidation Coal Company, 35

FMSHRC 439 (2013), involving a coal loading facility that received processed coal from an

adjacent preparation plant. The respondent states that the case involved two facilities, namely

(1) a coal loading facility that was essentially an extension of the preparation plant, and (2) a

barge onto which the coal was loaded. The respondent states that the loading facility where the

work of loading work that included the layering of the coal to meet the mine customer’s

specifications was held to be subject to the Mine Act, “but the barge was not, . . . and simply

transported the loaded coal” (pg. 9, post-hearing brief). The respondent further addresses two

Federal Court of Appeals cases relied on by the Secretary with respect to what constitutes a

36 FMSHRC Page 710
mine. RNS Services, Inc. v. FMSHRC, 115 v. F. 3d 182 (3d Cir. 1997), and Kinder Morgan

Operating, L.P. v. Chao, 78 F. App’x 462 (6th Cir. 2003) (unpublished); (Commission Decision

at 23 FMSHRC 1288, 1294 (2001)).

With respect to RNS Services, Inc., the respondent states that RNS loaded coal refuse at a

refuse site, and that the Court, in a 2-1 decision, the majority applied a functional analysis

focusing on the nature of the work being performed at the site and held that RNS was subject to

the Act. Even so, the respondent argues that the majority disclaimed the view that any loading

of coal was subject to the Act, and that in order to constitute a mine, the coal must be loaded “at

a place regularly used for the purpose, in preparation for further processing, and that the “loading

of the coal is a critical step in the processing of minerals extracted from the earth in preparation

for their receipt by an end-user. . . .” Id. At 185. The respondent notes the dissent argument that

the Commission had applied a per se ruling making any loading of coal subject to the Act. Id. At

192 (Alito, J., dissenting).

With regard to the Kinder Morgan Operating decision, involving a marine loading

facility that received and loaded coal, mostly for the Tennessee Valley Authority (TVA), and

that the TVA purchased the coal from numerous producers, and that Kinder Morgan stored and

blended the coal into different products for different plants. The respondent points out that the

Commission split 2-2 on whether the Mine Act applied to Kinder Morgan’s operation, and

concedes that the 6th Circuit found MSHA jurisdiction and adopted the reasoning of the two

Commissioners who voted to uphold jurisdiction based on their reasoning that Kinder Morgan

was performing work “usually performed by the operator of a coal mine by undertaking the

activities to make the coal suitable for a particular use or to meet market specifications.” 23

FMSHRC 1288, 1294 (2001).

The respondent cites several additional Court opinions that it believes make it clear that

storing, loading, and mixing coal are themselves insufficient to support jurisdiction, and that

otherwise, anyone who handles coal would be covered by the Act. The respondent concludes

that the storing, loading, and mixing must be part of a mine’s operations. In support of its

argument, the respondent cites Herman v. Associated Elec. Coop. Inc., 172 F. 3d 1078 (8th Cir.

1999), stating “not all businesses that perform tasks listed under the ‘work of preparing coal’ in

Section 802(i) can be considered mines.” Id. At 1082, and that while utilities may be subject to

the Act if they maintain a presence at the mine and assist in mining or loading the coal or if they

engage in coal preparation of the type performed by mine operators, “a utility that receives

processed coal from a mine does not itself become a ‘mine’ by further processing the coal for

combustion.” Id. At 1083. Thus, once a producer delivers processed, marketable coal to a

utility, the jurisdiction of MSHA ends, even though the utility may do further blending of the

product. Id.

The respondent argues that the Fourth Circuit made this same point in United Energy

Services, Inc. v. MSHA, 35 F. 3d 971 (4th Cir. 1994), involving the operator of a power plant that

went onto mine property and loaded coal refuse from a pile and transported it to the plant. Id at

973. Employing a functional analysis, the Fourth Circuit found that the plant operator was

engaged in the work of preparing the coal. Id. At 975. The respondent asserts that the Court was

36 FMSHRC Page 711
careful to rule, however, that the same analysis would not apply once the coal was delivered to

the plant.

The respondent asserts that the following facts are not contradicted:

1. Dominion purchases coal from various producers.

2. The coal is delivered to the Power Fuels site by contract truckers for the producers.

3. Dominion owns all of the coal that is delivered to the site.

4. Power Fuels is a contractor for Dominion under a Terminalling Agreement.

5. Power Fuels weighs, samples and stores the coal for Dominion.

6. Dominion instructs Power Fuels how to blend and deliver the coal.

7. Dominion does so to achieve the desired burn for the fuel going into its plant.

8. Dominion is the sole consumer of the coal at the Power Fuels site.

9. If Power Fuels did not store and blend the coal for Dominion, Dominion would have 

 to do the work itself or find another contractor to do it.

10. The work performed by Power Fuels is work that is usually performed by utilities or 

other consumers of coal. It is not the type of work performed by producers or brokers

of coal.

The respondent concludes that the activities listed in 30 U.S.C. Section 802(i) as being

part of the “work of preparing the coal” are limited by the phrase “as is usually done by the

operator of the coal mine.” If the storing, loading, and mining is the type of work usually

performed by the mine operator, the work is subject to the Act. On the other hand, if the work is

not of that type, but is work of the type usually performed by a utility or other consumer of the

coal, the work is not subject to the Act. In this regard, the respondent asserts that MSHA’s

Special Investigator Robert Clay testified that the activities in question occurred on the property

of Dominion, MSHA would not have considered the to be within its jurisdiction. In other words,

if Dominion had done the work itself, the agency would not have asserted jurisdiction. The

respondent concludes that if the activities are not subject to the Act when performed by

Dominion, then they are not subject to the Act when performed by a contractor for Dominion,

and that any other interpretation would lead to the extreme and unreasonable position that

MSHA has jurisdiction over everyone who receives and handles coal.

Findings and Conclusions

Jurisdiction

The essence and focus of the respondent’s jurisdictional argument is the statutory

language defining a coal mine, and the meaning of the phrases “work of preparing the coal” , and

“such other work of preparing such coal as is usually done by the operator of the coal mine”. At

hearing, the respondent’s counsel argued that any work associated with the blending, mixing,

and storage of coal does not ipso facto constitute “work of preparing the coal”, and does not

necessarily result in MSHA jurisdiction (Tr. 133-134).

36 FMSHRC Page 712
The respondent maintains that “a line must be drawn”, particularly in view of the

statutory language requiring a showing that the kind of work performed is the kind that is usually

done by a coal mine operator (Tr. 133-134). In support of its argument, the respondent relies on

the dissenting judge (now Supreme Court Justice Alioto) in RNS Services, Inc., supra that not

every mining, washing, sizing, or trucking of coal is a coal mine, and that the kind of work must

be the kind done by the coal operator.

The respondent dismisses any suggestion that the work it performs is done for a

customer, or that it was “some kind of a middle man custom blending coal to sell into a market”,

and asserts that it is in fact a contractor for the Dominion Power Plant that is not its customer “in

a sales sense” (Tr. 137). In response to these arguments, the Secretary maintains that the case

law cited and relied on in this case to support MSHA jurisdiction is clear that the line is drawn

where the work of mixing, storage, and loading of coal is done to meet a customer’s

specifications (Tr. 135).

I reject the respondent’s claim that Dominion Power is not its customer. The

terminalling agreement specifically describes Dominion Power as a “customer” numerous times

at pages one through eight (Ex. G-4). Further, the respondent’s site manager Walter Crickmer in

describing the blending of coal at the site pursuant to the agreement stated this is done “in

accordance with the reasonable requirements of the customers” (Tr. 127). He also confirmed

that the site is “a custom blending facility for Dominion Power”, and that all work performed “is

done to meet the requirements and specifications” of Dominion Power (Tr. 128). Accordingly, I

conclude and find that Dominion Power is in fact the respondent’s customer.

The respondent’s assertion that Inspector Clay, at (Tr. 69-72), testified that in the event

the trucks he observed were delivering coal directly to Dominion’s power plant, MSHA would

not have asserted jurisdiction must be considered in context. In fact, Mr. Clay testified that he

had “no idea” because he does not inspect power company property unless MSHA jurisdiction is

factually determined, and that was his understanding that MSHA’s claim of site jurisdiction is

based on the working activities he only observed taking place at the respondent’s property (Tr.

69-70). Further, when asked if he would be present at the hearing in this case if he had observed

the trucks going directly into the plant, inspector Clay stated he probably would be present at

the hearing because MSHA’s assistant district manager, his superior, “asked me to look into it

and I reported to him what I found” (Tr. 73). Further, in response to whether MSHA has

asserted its jurisdiction over other power plants in District 5, he confirmed that the only power

plant he was asked to look at was Dominion’s plant jurisdiction there” (Tr. 73).

The respondent’s conclusion that in my Consolidation Coal case, I found the layer

loading of coal at the loading dock at that facility location that includes a fixed barge constituted

“work in preparing coal” to meet customer specifications is correct. However, the respondent’s

assertion that I found that “a barge on which the coal was loaded” was a “facility” not subject to

MSHA jurisdiction because “it simply transported the coal is incorrect and mis-leading. I made

no finding the barge was a “facility”. The barge in issue was an empty barge on the Ohio River

located away from the loading dock location where no layer loading was taking place.

36 FMSHRC Page 713
I take particular note of the Court majority in RNS Services, Inc. supra, rejecting the

dissenting opinion that the Commission applied a per se ruling in that case. Indeed, the Court

noted that the Commission was cognizant of the fact that coal refuse was loaded at the site in

question for delivery to its power generator facility and correctly applied a “functional analysis”

test in determining that the coal loaded and store at that site was in fact loaded at a place

regularly used for that purpose, and were sufficient to render the sites of these activities a

“mine”.

I conclude and find that the resolution of jurisdiction in this case is properly and

reasonably made pursuant to a “functional analysis” as described in RNS Services, Inc., and

Oliver M. Elam, as well as in Mineral Coal Sales, Inc., Marion Docks, Inc., and Kinder Morgan

Operating Supra, decisions that I find persuasive and controlling precedents in this case.

Although the Court decisions in Herman v. Associated Elec. Coop., Inc. and United

Energy Services, Inc. v. FMSHRC, supra, relied on by the respondent may support its argument

that mixing, storage, and loading of coal work are not per se operational indicators supporting

Mine Act jurisdiction, those cases dealt with consumer electrical power plant sites, and not sites

similar to those at the respondent’s facility. In Herman, the Court found its operations to be

“manufacturing” subject to OSHA jurisdiction. In United Energy Services, Inc., the Court

applied a functional analysis in concluding that a power plant operator that went on mine

property and loaded refuse from a pile and transported it to its plant was engaged in coal

preparation work that is subject to Mine Act jurisdiction.

I am not persuaded by the respondent’s arguments that the work it performs for

Dominion Power is work that is usually performed by utilities or other coal consumers, and is

not the type of work performed by coal producers or brokers. The respondent is not a power

plant, utility, consumer, or a coal producer or broker, and the fact that it does not engage in those

activities is not relevant in this case. The credible evidence and un-rebutted facts in this

case clearly establishes that the respondent is a stand-alone coal blending facility identified as

such by signs prominently displayed on its property. The site location includes mobile

equipment such as several trucks, end-loaders, an office, a bath house, sampling and weight

scales, clearly identified storage areas, and a water tank and trucks, all of which provide the

logistical support for the employees as they perform their assigned duties related to the receipt,

testing, weighing, blending, mixing, storage, and transportation of coal from that site in order to

meet the coal specifications that are communicated to the respondent by Dominion Power on a

daily continual basis.

I am not further persuaded by the respondent’s argument that if it did not store and blend

the coal for Dominion, Dominion would have to do the work itself or find another contractor to

do it. In this case, no entity other than the respondent is the subject of MSHA’s asserted

jurisdiction and I assume it operates under a mine ID number assigned by MSHA to a mine

operator pursuant to 30 C.F.R., Part 41. In any event, pursuant to Section 3(d) of the Mine Act,

the definition of an “operator” includes any contractor performing services at a mine. Further, I

find that the respondent cannot avoid the Secretary’s enforcement scrutiny because it is

contractually obligated to perform these services for Dominion Power.

36 FMSHRC Page 714
Although the respondent’s site manager, Walter Crickmer, testified that no sizing,

screening, or crushing activities take place at the site and has “never done anything to improve

the coal quality”, he nonetheless admitted that the site does in fact blend the coal together on a

daily basis using its end-loaders that mix and blend it “by one bucket of this, and two buckets of

that”, following the aforementioned detailed specifications as to how the coal should be blended. 

Contrary to Mr. Crickmer’s opinion that the work performed at the site has nothing to do with

the quality of the coal it processes, I find the credible evidence with respect to the testing,

blending, and re-blending as necessary, are directly accomplished in order to insure and maintain

the consistent quality of the coal pursuant to Dominion’s quality specifications.

I conclude and find that the working activities taking place at the respondent’s site,

namely, the mixing, blending, weighing, sampling, storing, loading, and transporting coal to

Dominion’s plant clearly meets the Mine Act definition of “work of preparing the coal”, and that

this work is clearly done to meet the specifications of its customer, Dominion Power. I further

conclude and find that the respondent’s custom coal blending facility is a “coal or other mine”

clearly within the statutory definitions found in the Mine Act, and is therefore subject to the

Mine Act and the Secretary’s enforcement jurisdiction. The respondent’s arguments to the

contrary ARE REJECTED.

The Alleged Violations

In support of the citations in issue, the Secretary relies on the testimony of MSHA

Inspector Thomas Bower that I find credible and un-rebutted. The respondent availed itself of

the opportunity to cross-examine the inspector, but focused primarily on questions related to

jurisdiction rather than facts related to the conditions or practices that prompted the inspector to

issue the citations with his findings noted on the face of the citations. The respondent presented

no credible evidence to rebut the Secretary’s position with respect to the facts associated to the

violations in issue. In this regard, I informed the parties that I expected to hear testimony

concerning the three alleged violations, as well as the jurisdictional issue. I further informed the

parties that I did not intend to come back to try the three citations and the respondent clearly

understood that this was the case (Tr. 19-20). Further, my hearing notice informed the parties

that the issues to be addressed included testimony related to the violations.

The respondent’s statement at page two of its post-hearing brief that I permitted the

parties to file briefs “on the issue of jurisdiction” suggests that I limited any briefing to that issue

alone is incorrect. My expectation of briefs was not limited to jurisdictional issues, with the

exclusion of any arguments related to the alleged violations. At the conclusion of the hearing,

the respondent stated that briefs would be helpful (Tr. 140). Further, when asked if the

respondent wished to discuss the violations, the counsel stated “no sir” and “we rest” (Tr. 138). 

Although the respondent could have called the foreman who received the citations to testify, it

did not do so. During opening statements, the respondent stated “We think the citations are

relevant on the jurisdictional issues” (Tr. 19). The Secretary stated his intention to initially

establish jurisdiction and then proceed to each of the citations (Tr. 20).

36 FMSHRC Page 715
The Secretary’s assertions at page 13 of his post-hearing brief that “The facts of the

alleged violations at issue in these proceedings are not in dispute”, citing ALJ Exhibit 1, and the

trial transcript at pages 6 and 17 are inaccurate. ALJ Exhibit 1 concerns a joint stipulation with

respect to the admission of the citations in issue into evidence “without objection, except to

jurisdiction”. Each of the citations is described by the citation number, the date of issue, and the

cited mandatory safety standard. I find nothing to suggest that the parties agreed that the factual

conditions or practices described by the inspector on the face of each of the citations were not in

dispute or otherwise agreed to by the parties.

At page 6 of the transcript, I commented that the principal issue concerned jurisdiction,

and acknowledged the pre-trial position statement filed by the Secretary on November 15, 2013,

with a copy furnished to the respondent. The Secretary’s statement includes the intention to call

the inspectors who testified in this case, with the expectation of eliciting testimony including the

factual basis for the issuance of the citations. At page 3 of the statement, the Secretary

acknowledged that the issues to be litigated also included gravity, negligence, and the proposed

civil penalty assessments. The Secretary’s reference to page 17 of the transcript reflects a

comment by the Secretary’s counsel stating “and as Mr. Massie said, the facts really aren’t in

dispute”. I also note a statement by counsel at transcript page 11 that “there are going to be

disputes about the facts . . . There will be differences about what the facts mean”.

Based on all of the aforementioned circumstances, any suggestion that the respondent

was not expected to address the fact of violations at the hearing, or was somehow misled,

prejudiced, or treated unfairly for not doing so IS REJECTED. I conclude and find that the

respondent has waived its right and opportunity to present a defense or to rebut the Secretary’s

evidence in support of the violations. I further find that the credible and unrebutted testimony of

Inspector Bower establishes that the conditions and practices described in the citations constitute

violations of the cited mandatory safety standards. Accordingly, the citations ARE AFFIRMED.

History of Prior Violations

Exhibit A to the Secretary’s petition for assessment of civil penalties reflects no prior or

repeat violations, and no further information was received from the Secretary. Absent any

evidence to the contrary, I find the respondent has a good compliance record.

Good Faith Compliance

Based on the timely corrective actions as reflected in the citation termination notices, I

find that the respondent abated all of the violations in good faith.

Negligence

Based on the inspector’s credible testimony that the respondent’s foreman was not

responsible for any maintenance of the trucks delivering coal to the site, I accept and adopt his

“low negligence” determinations with respect to each of the citations.

36 FMSHRC Page 716
Size of Business and Effect of Civil Penalty Assessments on the Respondent’s

Ability to Remain in Business

The Secretary characterized the respondent as a small mine operator (Tr. 139), and the

parties stipulated that the payment of the proposed civil penalty assessments for the citations will

not adversely affect the respondent’s ability to continue in business. I adopt and incorporate

these agreements as my findings.

Gravity

Inspector Bower confirmed that he was not aware of any difficulties encountered by the

cited trucks inbound to the site, and to his knowledge they arrived safely (Tr. 51). While this

may be true, the fact remains that his un-rebutted and credible testimony clearly supports the

cited truck brake conditions and defective backup alarm. Accordingly, I find that the violations

were serious and would reasonably likely result in injuries.

Significant and Substantial Determinations

Inspector Bower determined that all of the citations were significant and substantial (S &

S) violations. With respect to Citation No. 820074, he testified that the cited truck braking

defects that he characterized as “faulty brakes, resulted in a 25% loss of breaking power”. He

confirmed that the conditions exposed employees who regularly traveled the site roads to

injuries, and that employees operating equipment were reasonably likely to suffer broken bones

or disabling and traumatic injuries in the event of an accident. He conceded this was “a worst

case” scenario and lesser injuries were conceivable (Tr. 30-36).

The inspector cited another truck after determining the brakes were out of adjustment and

that a leaking and defective air value resulted in a loss of braking air pressure that would

reasonably likely result in an accident. He stated that a “runaway truck” could result in a

collision accident resulting in permanently disabling injuries. (Citation No 8204726; Tr. 39-40)

The inspector cited the same truck after it was observed operating in reverse in congested

working areas where employees were present and the back-alarm did not sound. He confirmed

that the vehicle had an obstructed view to the rear, and that if it backed up over people working

in the area, they would be exposed to crushing and permanently disabling injuries (Citation No.

8204725; Tr. 33-34).

The established case precedents with respect to S & S violations, Cement Div. Nat’l

Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981), Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.

1984), and U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), and U.S. Steel

Mining Co., Inc., 6 FMSHRC 1574 (July 1984), require proof of the following elements that

must be considered in terms of continued mining operations:

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

and substantial under National Gypsum, the Secretary of Labor must prove: (1) the

36 FMSHRC Page 717
underlying violation of a mandatory safety standard; (2) a discrete safety hazard that is, a

measure of danger to safety contributed to by the violation; (3) a reasonable likelihood

that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that

the injury in question will be of a reasonably serious nature. 

I conclude and find that the affirmance of the violations establishes the first Mathies

prong. With respect to the second prong requiring a discrete safety hazard contributed to by the

violation, I conclude and find that the credible unrebutted testimony of Inspector Bower

describing the defective truck braking systems, as well as the cited inoperative trucks backup

alarm, presented discrete safety hazards and measures of danger contributed to by the violations

pursuant to the second Mathies prong.

The third Mathies prong requires the presence of a reasonable likelihood that the hazard

contributed to will result in an injury. The evaluation of the risk of injury necessarily assumes

the continuance of normal mining operations. The credible and unrebutted testimony of the

inspectors establishes that 30 to 50 loaded trucks arrived and entered the respondent’s site on a

daily basis with frequent stops at the weighing scale, the storage areas where the coal is dumped

and blended by end-loaders. The trucks also traveled over inclined roadways on the property

and the same roads used by the work force on foot.

Inspector Bower testified credibly that the trucks backed up in congested areas where

workers and pieces of equipment are present, and that the cited facility brake conditions could

prevent the truck from stopping as intended or result in a truck “runaway”. Based on the brake

defects that he found, as well as his accident investigator experience involving truck accidents

under similar defective braking systems, he concluded that it was reasonably likely that an

accident would occur causing a wreck, with the resulting serious injuries that he described. One

of these trucks was also cited for an inoperative backup alarm and the inspector concluded that if

it backed over anyone, they would likely suffer crushing and disabling injuries.

I conclude and find that the hazardous defective truck brakes and backup alarm

conditions would reasonably likely contribute to an accident resulting in serious injuries to

employees at risk in the event they were to continue with their normal working duties. 

Accordingly, I conclude and find that the third and fourth Mathies prongs have also been

established. Accordingly, all of the inspector’s S & S determinations ARE AFFIRMED.

36 FMSHRC Page 718
ORDER

Based on all of the aforementioned findings and conclusions in this case, including the

civil penalty assessment criteria found in Section 110(i) of the Mine Act, all of the citations ARE

AFFIRMED. Further, I accept and affirm the proposed penalty assessments of $100 for each of

the citations (8204724, 8204725, and 8204726).

The respondent shall pay a civil penalty assessment of $300 for the violations within

thirty (30) days of the date of this Order. Payment shall be submitted to the Mine Safety and 

Health Administration (MSHA), U.S. Department of Labor, Payment Office, P.O. Box 790390,

St. Louis, MO 63179-0390, referencing the captioned docket numbers. Upon receipt of

payment, these proceedings ARE DISMISSED.

/s/ George A. Koutras 

George A. Koutras

Administrative Law Judge

Distribution:

Anthony D. Jones, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson

Boulevard, 22nd Floor, Arlington, VA 22209-2296

Wade W. Massie, Penn, Stuart, & Eskridge, P.O. Box 2288, Abingdon, VA 24212

36 FMSHRC Page 719
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

 March 17, 2014 

DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of 

 Labor, 618 Church Street, Suite 230, Nashville, Tennessee for the 

 Secretary of Labor 

 John Church, Conference and Litigation Representative, U.S. Department 

 of Labor, Mine Safety and Health Administration, 135 Gemini Circle, 

 Suite 213, Birmingham, Alabama for the Secretary of Labor 

 Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, 

 PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, Kentucky for 

 Respondent 

Damon Jay Boiles III, Esq., Drummond Company, Inc., P.O. Box 10246, 

Birmingham, Alabama for Respondent 

Before: Judge Andrews 

 These civil penalty proceedings are conducted pursuant to the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or “Act”). This matter 

concerns Citation Nos. 8518691 and 7699789, both issued under Section 104(a) of the Act and 

served upon Drummond Company, Inc. (“Drummond” or “Respondent”) by the Mine Safety and 

Health Administration (“MSHA”). A hearing was held on July 10, 2013 in Birmingham, 

Alabama at which the parties presented testimony and documentary evidence. After the hearing, 

the parties submitted Post Hearing Briefs and informed the undersigned that Respondent 

withdrew its contest of Citation No. 7699789 and agreed to pay the assessed penalty of 

$1,203.00. The assessed penalty for Citation No. 8518691 is $8,209.00.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

DRUMMOND COMPANY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2011-274 

A.C. No. 01-02901-242524 

Docket No. SE 2011-403 

A.C. No. 01-02901-248080 

Mine: Shoal Creek Mine 

36 FMSHRC Page 720
PROCEDURAL HISTORY

 These dockets collectively contained twenty-nine citations and were assessed penalties 

totaling $81,620.00. On June 24, 2011, they were assigned to Administrative Law Judge Jeffrey 

Tureck. On March 20, 2012, a motion for partial settlement that included twenty-five citations 

was approved. The Secretary filed a motion for summary judgment concerning Citation Nos. 

8518691 and 7699789 on October 9, 2012, which was denied in a decision by Judge Tureck on 

November 23, 2012. Later, on November 26, 2012, a second motion for partial settlement that 

covered two unrelated citations was approved, leaving only Citation Nos. 8518691 and 7699789 

at issue for hearing. These cases were reassigned to the undersigned on February 12, 2013. 

STIPULATIONS

 1. Respondent was the operator of the Shoal Creek Mine at all relevant times. 

 2. The Shoal Creek Mine is a “mine” as that term is defined in Section 3(h) of the 

 Mine Act. 

 3. Operations at the Shoal Creek Mine involve products which enter commerce or 

 products which affect commerce. 

 4. Respondent is subject to the Federal Mine Safety & Health Act of 1977. 

 5. The Citations attached to Exhibit A of the Secretary’s Petitions were issued to 

 Respondent. 

 6. The penalty assessed for the alleged violations are appropriate to the size of the 

 operator. 

 7. The operator demonstrated good faith in attempting to achieve rapid compliance 

 after notification of the alleged violations. 

 8. The penalties assessed will not affect the operator’s ability to continue in 

 business. 

THE CITATION

 On November 15, 2013, MSHA Inspector Stanley Frank Wilkosz (“Wilkosz”) issued 

Citation No. 8518691 for a violation of 30 C.F.R. § 75.1506(g). The Condition or Practice 

stated: 

At all times, the site and area around the refuge alternative shall be kept clear of 

machinery, materials and obstructions that could interfere with the deployment or 

use of the refuge alternative. The refuge alternative on the G-9 long wall section 

#31 brattice had coal, rocks and blocks 1.5 feet deep by 8 feet wide from the side 

of the chamber and toward the door. 

36 FMSHRC Page 721
GX-1.1

 Wilkosz designated this violation as reasonably likely to result in fatal injuries to ten 

miners and significant and substantial (“S&S”) in nature. He further evaluated Respondent’s 

negligence as moderate.Id. The citation was terminated on November 17, 2013 when the refuge 

alternative was moved to the 34 cross cut, which was well rock-dusted, had adequate roof and rib 

conditions, and was free from obstructions. Id. 

LAW AND REGULATIONS

 Wilkosz cited Respondent for a violation of 30 C.F.R. § 75.1506(g). This regulation, 

entitled “Refuge alternatives,” states, “[a]t all times, the site and area around the refuge 

alternative shall be kept clear of machinery, materials, and obstructions that could interfere with 

the deployment or use of the refuge alternative.” 30 C.F.R. § 75.1506(g). 

 Wilkosz found that this violation was S&S in nature and was the result of moderate 

negligence. A significant and substantial (“S&S”) violation is described in section 104(d)(1) of 

the Act as a violation “of such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A 

violation is properly designated S&S “if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

 The Commission has explained that: 

[i]n order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck 

Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 

F.2d 99,103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

 The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: We have explained further that the third element of 

the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language 

																																																																	 1

 Hereinafter, Government exhibits will be referred to as “GX” followed by a number. 

Respondent’s exhibits will be referred to as “RX” followed by a number. Cites to the transcript 

will be labeled “Tr.” followed by the page number(s). 

36 FMSHRC Page 722
of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 

1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

 This evaluation is made in consideration of the length of time that the violative condition 

existed prior to the citation and the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

 Negligence “is conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 

100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have 

known of the violative condition or practice, but there are considerable mitigating 

circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of 

the violative condition or practice, but there are mitigating circumstances.” Id. High negligence 

exists when “[t]he operator knew or should have known of the violative condition or practice, 

and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 

(2011)(ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct 

which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). 

CONTENTIONS OF THE PARTIES

 The Secretary contends that Respondent violated 30 C.F.R. § 75.1506(g) when it did not 

remove the material that accumulated in front of the RA when it was moved. He argues that the 

citation was correctly designated as S&S because miners could trip over the accumulation, lose 

the lifeline and become disoriented interfering with their ability to retreat to the RA. He also 

states that the alleged violation was the result of moderate negligence because the RA was in an 

area of high travel, so a foreman should have noticed the material. 

 Respondent argues that no violation of 30 C.F.R. § 75.1506(g) occurred because nothing 

interfered with the use or deployment of the RA. In the alternative, it contends that the alleged 

violation is neither S&S nor the result of moderate negligence. In support, it states that the 

material acted as a sort of ramp to the entrance of the RA and would actually help miners in the 

event of an emergency situation. It also argues that the RA had been moved after the preshift 

examination and had only been in place for a couple of hours at the time that the citation was 

issued. 

36 FMSHRC Page 723
SUMMARY OF THE TESTIMONY 

The findings of fact are based on the record as a whole and my careful observation of the 

witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into 

consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, 

in each witness’s testimony and between the testimonies of the witnesses. In evaluating the 

testimony of each witness, I have also relied on his demeanor. Any failure to provide detail as to 

each witness’s testimony is not to be deemed a failure on my part to have fully considered it. 

The fact that some evidence is not discussed does not indicate that it was not considered. See 

Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to 

discuss all evidence and failure to cite specific evidence does not mean it was not considered). I 

have also fully considered the contents of the Official File including the pre- and post-hearing

submissions of the parties, and the exhibits admitted into evidence. 

1. Testimony of Stanley Frank Wilkosz 

 Wilkosz is an inspector who has worked for MSHA for approximately five years. Tr. 15. 

He began work in the coal industry in 1969 at the Renton Coal Mine in Renton, Pennsylvania 

where he worked for about twelve years. Tr. 16. During this time, he was a general laborer, an 

equipment operator and a fire boss. Tr. 17. After a twenty year hiatus, Wilkosz returned to the 

industry with Respondent at the Shoal Creek Mine in 2005 as a face foreman. Tr. 17, 19. In this 

capacity, he was responsible for taking air readings, conducting gas checks and conducting 

preshift and onshift examinations. Tr. 19. He continued in this position until joining MSHA in 

2008. Tr. 20. 

 Wilkosz issued Citation No. 8518691 on November 15, 2010, while at the mine 

conducting a regular quarterly inspection. Tr. 20-21; GX-1. He was traveling a return air course 

with Safety Director Larry Armstrong (“Armstrong”) and Union Representative Joe Weldon 

when he noticed a pile of rocks along the side of the refuge alternative (“RA”). Tr. 21-23; GX-3. 

According to Wilkosz, the RA is a man-made structure that supports life by facilitating 

communications with the outside, supplying its own oxygen supply, filtering incoming air and 

supplying food and water. Tr. 22. In the event of a disaster, this is where the miners retreat to as 

a last resort. Tr. 22. Because it is required to be within a certain distance of the face, it must 

advance and retreat with the miners. Tr. 23. 

 Wilkosz testified that the RA, including the door, was blocked by coal and rocks, as well 

as blocks that had been used to build the stopping behind it. Tr. 27, 36; GX-3. When asked, he 

did not recall Armstrong opening the door. Tr. 28. He stated that the average depth of the debris 

was one and a half feet, which he measured using a measuring tape at the beginning and looking 

toward the wall. Tr. 41. According to Wilkosz, it could have been deeper, but he did not dig. 

Tr. 41. He theorized that the debris pile was created as the RA was pushed along the roadway by 

a heavy-duty forklift. Tr. 39-40. He did not attempt to open the door because the RA is actually 

sealed until an emergency situation occurs. Tr. 43. He testified at the hearing that if miners 

cannot get into the RA, it is not considered to be “deployed.” Tr. 45. In his opinion, tripping 

hazards constitute an interference or obstruction with escaping or getting to a refuge alternative. 

Tr. 47. 

36 FMSHRC Page 724
 During cross-examination, Wilkosz acknowledged that refuge alternatives were not 

required when he was employed at Respondent’s Shoal Creek Mine. Tr. 44. Therefore, he has 

no experience in examining them. Tr. 45. He further admitted that during his deposition he 

stated that he did not see anything that interfered with “deployment,” but he did see obstructions 

that he did not measure. Tr. 46, 54. During the hearing, he also stated that regardless of debris 

or obstructions, miners must step up into the RA anyway. Tr. 48-49. 

Wilkosz determined that the violation was reasonably likely to result in injury and S&S 

because miners would be following the lifeline in a disaster or emergency situation in which they 

can’t see. Tr. 30, 38. If they hit tripping hazards, which can reasonably be assumed to cause 

broken legs, etc., it is likely that miners would not make it into the RA. Tr. 30. If miners were to 

lose the lifeline by tripping over the debris, they could become disoriented because the 

environment is totally black, according to Wilkosz. Tr. 37, 40. In this environment, head lamps 

and cap lights would be useless because of the smoke and dust in the air.2

 Tr. 30. Given this 

situation, he found that injuries would most likely be fatal because miners would not be able to 

get into breathable airspace. Tr. 36. He explained that fires on a belt line or in coal creates 

noxious gases and takes oxygen out of the air. Tr. 37. 

 Wilkosz further designated the negligence as moderate. Ex. 1. He testified that the 

longwall coordinator stated that the RA had been moved that morning. Tr. 38. Wilkosz 

acknowledged that the RA would have been moved after the preshift examination and admitted 

that he had no evidence that a person of responsibility had seen the condition; although, he 

testified that someone should have. Tr. 38-39, 51, 53. He stated that it was a heavily trafficked 

with foremen passing it several times throughout the shift. Tr. 51. He did not withdraw the 

miners or take the RA out of service because Armstrong represented that Respondent would 

move the RA. Tr. 62. 

2. Testimony of Larry Armstrong 

Armstrong possesses a Bachelor’s as well as a Master’s degree in Counseling. Tr. 67. 

He worked in the mining industry from approximately 1972-1988 as an inside laborer, 

equipment operator and electrician for Jim Walter Resources before leaving the industry entirely 

to pursue a career in counseling. Tr. 68. He returned to mining at Drummond in 2004 as a 

safety inspector. Tr. 68. In this capacity, he travels with inspectors during their inspections, 

including during Wilkosz’s inspection on November 15, 2010. Tr. 69, 74. He makes notes of 

what he sees and points out mitigating circumstances. Tr. 69. He also tries to correct any 

conditions that may not be citable, but need correcting nonetheless. Tr. 69. Outside of official 

inspections, he inspects the mine himself, including the belts and mine ARCS3

. Tr. 69. 

Armstrong testified that he is certified in installing and examining refuge alternatives. Tr. 71. 

According to Armstrong, a refuge alternative is a safe place for miners to gather in case 

of an emergency such as a fire, an ignition or an explosion. Tr. 72. It provides the miners with 

fresh air. Tr. 72. He explained that the RA has a step up into it which measures approximately 

																																																																	 2

 During his employment with Drummond, Wilkosz testified that he experienced a belt 

fire and the limitations of sight to which he testified. Tr. 31-33. 

3

 This is another term for a refuge alternative. Tr. 69. 

36 FMSHRC Page 725
eleven and three quarters inches from floor to door. Tr. 74. During the inspection, he described 

the debris as coal and dirt that had “kind of tapered up into an incline.” Tr. 75. Armstrong stated 

that the area was smooth and neither he nor Wilkosz had any difficulty walking in the area. Tr. 

79-80. In his opinion, the depth was nine inches at the most because it started even with the 

floor and was not over the top of the step. Tr. 75. He admitted that he did not take any 

measurements, but he stated that he did not see Wilkosz take any either. Tr. 76-77. Armstrong 

further disputed Wilkosz assertion of the location of material around the RA. Tr. 78; GX-3. 

Armstrong testified that he did open the door to the RA during the inspection, and he did 

not have push any material aside to do so. Tr. 80, 82. He did this because Wilkosz made that the 

comment that the door may have been obstructed. Tr. 81. However, Armstrong stated that 

Wilkosz turned and walked away just as he was demonstrating that the door could be opened. 

Tr. 81. He was certain of these events because it was the first refuge alternative that he had ever 

opened. Tr. 81. Armstrong stated that it was possible that Wilkosz had not heard him say that 

the door would be opened. Tr. 82. 

Armstrong explained that a branch line of the lifeline was physically attached to the RA 

door on both the left and right sides. Tr.82-84; GX-3. He said that the material began 

approximately three feet from the RA, and he believed that, in the event of an emergency, the 

debris was such that, rather than interference, it may have actually helped miners by acting as a 

sort of ramp. Tr. 85, 89-90. Even if a miner were to trip and lose the lifeline, he explained that 

he or she would then likely reach up and to the right for the lifeline at which time the RA would 

be found. Tr. 89. Armstrong’s boss, Randy Clements (“Clements”) also inspected the RA 

approximately sixteen hours after the citation was issued. Tr. 90-91. According to Armstrong, 

Clements also commented that the material did not interfere with the use of the door. Tr. 91. 

During cross-examination, Armstrong admitted that he did see “some” rocks and blocks 

in the area, as well as the coal and dirt that was even with the step. Tr. 101; GX-12. He later 

stated that the blocks had been moved out of the way by hand into the corners to create a 

pathway for the movement of the RA, and they would not have interfered with miners seeking 

refuge. Tr. 101, 106, 108. Further, while Armstrong testified that he actually asked Wilkosz if 

he wanted to see the door a second time, he generally described Wilkosz’s reaction as nonresponsive. Tr. 103-104. 

3. Testimony of Kenneth Randy Clements 

Clements started in the mines at Jim Walter Resources in 1979. Tr. 114. Here, he 

basically operated every type of equipment, including the miner, roof bolter, shuttle car and 

scoop. Tr. 114. While transferring between mines, he became a safety inspector, then a safety 

superintendent. Tr. 114-115. At the time that the citation was issued, he held the title of Safety 

Superintendent for the Shoal Creek Mine. Tr. 115. In this capacity, Clements oversees all safety 

aspects of the mine such as dust sample collection and maintenance calibration. Tr. 115. He 

reviews all citations that are issued to the Mine and determines which should be contested. Tr. 

115. 

Clements explained that at the time that the instant citation was issued, refuge alternatives 

were a new requirement and a “touchy issue” with operators. Tr. 116. According to Clements, 

as a new legal requirement, operators were trying to make sure that everything was “right.” Tr. 

36 FMSHRC Page 726
116. He too was trained and certified by Jim Walters Resources in maintaining and examining 

the RA. Tr. 122. Sixteen hours after Citation No. 8518691 was issued, Clements accompanied 

Armstrong to the RA. Tr. 118. He averred that the conditions were the same as the time of 

issuance because he could see the pathway of the machinery around the RA, which would not 

have been viewable if the miners had begun to shovel the area out. Tr. 118. Given the 

conditions as they existed, Clements testified that he did not understand why the citation was 

issued. Tr. 117. 

Clements stated that he was able to open the door to the RA with no obstruction or 

pushing of material. Tr. 117. He further testified that he actually walked on the material and did 

not see anything in the travelway that would constitute a tripping hazard. Tr. 119. He did see 

some blocks on the left-hand side of the travelway; however, he argued that it did not interfere 

with his approach to the RA. Tr. 119-120. At the time of the hearing, Clements could not recall 

whether the lifeline was attached in this particular instance, but stated that it usually is now. Tr. 

120-121. He admitted that Respondent did not comply with the requested termination time, but 

he argued that it is not uncommon for MSHA to set a time that it knows cannot be met. Tr. 123. 

ANAYLYSIS AND CONCLUSIONS

1. Validity 

I find that the Secretary has met his burden of proving a violation of 30 C.F.R. § 

75.1506(g). Wilkosz credibly testified that there was material laying in front of the door to the 

RA. In fact, Respondent does not dispute this fact. Instead, it argues that the material did not 

interfere with the use or deployment of the RA. At hearing, Wilkosz testified that the material 

was blocking the door. However, this information is not located in the narrative or the citation, 

and Wilkosz later acknowledged that, in his deposition, he stated that the material was not 

blocking the door. In light of this, I discredit the testimony that the door was blocked. 

Regardless, I find that the material interfered with the use of the RA. In training for 

emergency situations, miners were taught to follow the lifeline and branch line. At the end of 

this branch line, they anticipated a step up into the RA. If a miner were to trip over the 

unexpected material and lose the lifeline, he could become very disoriented. In his search for the 

RA, he would be expecting to find a step if he were on his hands and knees. The material (as 

described by both Wilkosz and Armstrong) would prevent this discovery. 

Respondent argues that the “ramp” would actually be helpful to the miners in that they 

would not have to step up into the RA in the low visibility. I find this unpersuasive. If a miner 

were in an emergency situation, his training would presumably guide him in how to proceed. 

Given this fact, the “ramp” would serve to confuse rather than guide. As such, I discredit this 

argument and find that the Secretary has proven a violation of the regulation. 

2. S&S 

I further agree that the Secretary has proven that this violation is S&S in nature. As 

stated above, a violation of the regulation has been found. This violation contributes to the 

hazard of a miner falling during an emergency situation, becoming disoriented and failing to find 

the RA. If this were to happen, it is reasonably likely that he could suffer inhalation or burn 

36 FMSHRC Page 727
injuries depending on the particular emergency requiring evacuation. There is no doubt that 

these injuries could lead to fatalities. In light of this, I find that the violation is S&S in nature. 

Like the lifeline regulation, I find that 30 C.F.R. § 75.1506(g) is an emergency regulation. 

Indeed, refuge alternatives are a last-resort means of survival. To apply the regulation in any 

other situation than an emergency is to defy the basic meaning of it. Secretary of Labor v. 

Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2367 (Oct. 2011), aff’d Cumberland Coal 

Resources, LP v. Secretary of Labor, 717 F.3d 1020 (D.C. Cir. 2013). I do not rule that every 

interference with a refuge alternative is S&S; however, given the circumstances as they exist in 

this particular situation, I find that in an emergency situation, the material would have been 

reasonably likely to result in the reasonably serious injury, including fatalities, to miners. 

2. Negligence 

I do not, however, find that the Secretary has proven that the violation was the result of 

Respondent’s moderate negligence. As stated before, moderate negligence occurs when the 

operator new or should have known about the condition, but there are some mitigating factors. 

While I agree that Respondent should have known about the condition, there are considerable 

mitigating factors here. First, Wilkosz received information from the longwall coordinator and 

acknowledged at hearing that the RA was moved after the preshift examination occurred that 

morning. Second, Wilkosz admits that he had no information whatsoever to suggest that any 

agent of Respondent had knowledge of the material. Wilkosz based his designation on the idea 

that the area was heavily trafficked and foreman would have passed it several times during the 

shift. However, there was no evidence provided because the inspector had none. Given all of 

this information, I find that the condition was the result of Respondent’s low negligence. 

4. Penalty 

Section 110(i) of the Mine Act delegates to the Commission and its judges the authority 

to assess all civil penalties provided in the Act. 30 U.S.C. § 820(i). The Act delegates the duty 

of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator 

notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the 

Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil 

monetary penalties the Commission and its judges shall consider the six statutory penalty 

criteria, found at Section 110(i) of the Act: 

[1] the operator’s history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the 

operator was negligent, [4] the effect on the operator’s ability to continue in 

business, [5] the gravity of the violation, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

Id. 

 The Secretary and Respondent stipulated to the appropriateness of the penalty, the effect 

on the operator’s ability to continue in business and the demonstrated good faith in achieving 

rapid compliance. As stated above, I have affirmed the gravity designation and decreased the 

36 FMSHRC Page 728
negligence. Having considered each of the six criteria and given that I decreased the negligence 

attributable to Drummond, I find that the penalty for Citation No. 8518691 should be decreased 

to $7,000.00. 

ORDER

 In light of the foregoing, it is ORDERED that Citation No. 8518691 is MODIFIED to 

reduce the negligence attributable to the operator from “Moderate” to “Low.” Citation No. 

7699789 remains as issued. It is further ORDERED that Drummond Company, Inc., PAY the 

Secretary of Labor the sum of $8,203.00 within 30 days of the date of this Decision.4

 Upon 

receipt of payment, these cases are hereby DISMISSED. 

 /s/ Kenneth R. Andrews 

 Kenneth R. Andrews 

 Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

John Church, Conference and Litigation Representative, U.S. Department of Labor, Mine Safety 

and Health Administration, 135 Gemini Circle, Suite 213, Birmingham, AL 35209 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

Damon Jay Boiles III, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, AL 

35202 

/kmb 

																																																																	 4

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

36 FMSHRC Page 729
1

 30 U.S.C. § 815(c)(2) states, in relevant part:

Any miner or applicant for employment or representative of miners

who believes that he has been discharged, interfered with, or

otherwise discriminated against by any person in violation of this

subsection may, within 60 days after such violation occurs, file a

(continued...)

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

March 19, 2014

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of CARLOS LOPEZ,

 Complainant 

 

 v.

SHERWIN ALUMINA, LLC,

 and its SUCCESSORS,

 Respondent

:

:

:

:

:

:

:

:

:

:

:

 DISCRIMINATION PROCEEDING

 Docket No. CENT 2012-237-DM

 Case No. SC-MD-11-23

 Mine: Sherwin Alumina

 Mine ID: 41-00906 

DECISION

Appearances: Elizabeth M. Kruse, Esq., Josh Bernstein, Esq., U.S. Department of Labor, Office 

 of the Solicitor, Dallas, Texas, on behalf of Complainant;

Christopher V. Bacon, Esq., Vinson & Elkins, LLP, Houston, Texas, for

Respondent.

Before: Judge Bulluck

This case is before me upon a Discrimination Complaint brought by the Secretary of

Labor (“Secretary”) on behalf of Carlos Lopez (“Lopez”) against Sherwin Alumina, LLC, and its

Successors (“Sherwin”), pursuant to section 105(c) of the Federal Mine Safety and Health Act of

1977 (“Act”), 30 U.S.C. § 815(c). The Secretary contends that Sherwin unlawfully suspended

Lopez on or about September 21, 2011, and terminated him on or about October 19, 2011 from

its Gregory, Texas Plant, because Lopez engaged in certain activities that were protected under

the Act. 

On September 28, 2011, Lopez filed a Discrimination Complaint with the Secretary’s

Mine Safety and Health Administration (“MSHA”) under section 105(c)(2) of the Act.1

 MSHA

36 FMSHRC Page 730
(...continued)

complaint with the Secretary alleging such discrimination. Upon

receipt of such complaint, the Secretary shall forward a copy of the

complaint to the respondent and shall cause such investigation to

be made as he deems appropriate.

special investigator Jerry Anguiano conducted an investigation and, consequently, the Secretary

determined that a violation of section 105(c) had occurred. On December 27, 2011, the

Secretary filed a Discrimination Complaint on behalf of Lopez, alleging that Sherwin illegally

terminated him for engaging in activities protected under section 105(c) of the Act, including

making hazard complaints to MSHA, making safety complaints to Sherwin management, and

publically advocating an increased MSHA presence at the Plant. A hearing was held in

Ingleside, Texas.

For the reasons set forth below, I conclude that the Secretary has established a prima

facie case of discrimination under the Act, and that Sherwin has failed to rebut the Secretary’s

prima facie case or defend its actions by proving that it would have terminated Lopez for his

unprotected activity alone.

I. Stipulations

The parties stipulated to the following:

1. The Federal Mine Safety and Health Review Commission has jurisdiction over

this action, pursuant to section 113 of the Mine Act, 30 U.S.C. § 823.

2. This action is brought by the Secretary pursuant to the authority granted by

section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 

 3. At all relevant times, Sherwin Alumina, LLC, Respondent, was an operator

as this term is defined by section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

4. At all relevant times, Respondent was also a person within the meaning of

sections 3(f) and 105(c) of the Mine Act, 30 U.S.C. §§ 802(f), 815(c). 

 5. Respondent produces products that enter commerce or has operations or

products that affect commerce, all within the meaning of sections 3(b), 3(h) and 4 of the

Mine Act, 30 U.S.C. §§ 802(b), 802(h) and 803. 

 6. At all relevant times, Respondent employed Complainant as a maintenance

mechanic at the Sherwin Alumina, LLC, facility. 

36 FMSHRC Page 731
2

 Lopez filed his Complaint on September 28, and MSHA notified Sherwin on September

29. Ex. C-7 at 1-2. 

3

 TIDES is the acronym for Total Involvement Drives Employee Safety. Tr. 51. 

 7. At all relevant times, Complainant was a miner within the meaning of section

3(g) of the Mine Act, 30 U.S.C. § 802(g). 

 8. At the time of his termination, Lopez was earning $32.55 an hour.

 9. Pursuant to the settlement agreement on temporary reinstatement, Lopez was

economically reinstated on November 21, 2011, and has been paid as if he had been

working 48 hours a week: 40 hours at his regular rate of pay of $32.55 an hour, and eight

hours at his over-time rate of $48.33. Lopez has been receiving all employee benefits,

including health benefits. 

 10. Complainant engaged in protected activity within the meaning of section 

105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1), when he reported safety hazards and

violations to agents at the mine on or about September 12, 2011, and when he filed a

Complaint with MSHA on September 29, 2011.2

 11. Respondent was aware of Complainant’s protected activity.

 12. Complainant’s tags were properly placed and visible. 

 Tr. 48-50.

II. Factual Background

 Sherwin Alumina processes bauxite to produce smelter grade alumina at its Plant in

Gregory, Texas. Tr. 551-52; Ex. C-18 at 7. Carlos Lopez worked at the Plant as a maintenance

mechanic since 1974, and served on Sherwin’s TIDES committee.3 Tr. 206; Ex. R-30 at 36-37.

In 2008, Lopez called MSHA to report a safety hazard involving a displaced valve in the

Clarification section. In 2009, he contacted MSHA about an improperly drained tank in the

Digestion section and, in 2010, he reported overhead bridge drains in Digestion that had fallen

and landed dangerously close to miners. Tr. 207-10. Also in 2010, Lopez warned his

supervisor, unit manager Michael Douglas, that he would call MSHA if Sherwin did not fix

certain leaking valves. Tr. 211-12, 394-95. 

In August 2011, Sherwin held a series of informational meetings in which it delivered a

presentation to its workforce entitled the “MSHA Threat.” Tr. 370-75; Ex. R-29 at 19. In each

of several sessions, eighty to ninety miners were made aware that Sherwin was receiving a high

number of citations which, if continued, could place the company in a Potential Pattern of

36 FMSHRC Page 732
4

 Blinding a valve refers to opening up the space between the valve and the pipe flange,

and inserting a plate between them to prevent leakage. Tr. 223-24, 228-29.

5

 Condensate is hot water. Tr. 229. 

6

 SSTs conduct internal safety investigations, communicate with employees, and assist

MSHA with site investigations. Tr. 336. 

Violations (“PPOV”) status. Sherwin was extremely concerned about this situation, since PPOV

status is the precursor to substantially increased fines and heightened oversight by MSHA. 

Tr. 370-71. During the presentation that Lopez attended, Lopez publically voiced a view

contrary to the intended message of the meeting, that “it [would] be a good thing for MSHA to

be on-site.” Tr. 221. 

On September 12, 2011, Lopez, working in the Digestion department on the B shift, was

assigned to blind the valves of the 5-8 heater to prepare it for cleaning. Tr. 223-24; Ex. R-16.4

Before he began the task, Lopez, in accordance with Sherwin’s lockout/tagout policy

(“LO/TO”), placed “Do Not Operate, Men Working” tags on the heater’s valves at the three

levels from which the heater can be accessed. Stip. 12; Tr. 73, 226; Exs. C-5 at 1, C-14. At

some point during the job, Lopez advised the team resource coworker, Isaac Jaramillo, that he

was encountering difficulty completing the task because vapor valves on top of the heater were

leaking. Tr. 224-25. Lopez continued working at ground level, standing on a platform to work

on the condensate feed valve, when his immediate supervisor, Larry Mayfield, walked past him

and traveled up the stairs to the third level of the heater. Mayfield inserted a homemade air

ejector into a vent valve, forcing air into the tagged-out system. Tr. 226, 234, 303; Ex. R-3. The

introduction of air into the heater caused condensate to blow out of the flange, spraying Lopez

on his back and causing him to jump from the platform. Tr. 228-32.5

 As Mayfield was coming

back down to ground level, he saw Lopez get sprayed, and told him that he would get a safety

system trainer (“SST”) to address the accident.6

 Tr. 234. Thereafter, Mayfield and SST Eugene

(“Gene”) Carter returned to where Lopez was working, proceeded up to the third level and,

again, breaching the tags, Mayfield, at Carter’s instruction, re-enacted insertion of the air ejector.

Tr. 235, 338, 410. This time, however, no condensate was released. Tr. 236, 338. Thereafter, as

a result of the incident, Lopez, Mayfield and Carter went to Carter’s office, and Lopez was sent

to the medical unit to get checked-out. Tr. 237. 

Two days after the condensate release, on September 14, Lopez, Mayfield, Carter, their

supervisor Douglas, TIDES facilitator John Gomez, safety manager Gus Aguirre, and union

president Terry Howard participated in a Root Cause Analysis (“RCA”) meeting as part of an

investigation of the incident. Tr. 51, 75-77, 144, 404. Douglas and Aguirre asked Lopez,

Mayfield, and Carter to give accounts of the incident. Tr. 406-10. While the accounts were

similar, Mayfield stated that when he first arrived on the scene, he invited Lopez to accompany

him to the third level to install the air ejector, but Lopez told him that using the ejector was a

stupid idea that would not work. Tr. 407. Lopez’s version of events did not include Mayfield’s

alleged invitation. Two days later, Douglas, refinery manager David Buick, and administration

36 FMSHRC Page 733
7

 30 U.S.C. § 815(c)(1) states, in relevant part:

No person shall discharge or in any manner discriminate . . .

(continued...)

director John Vazquez, troubled by the discrepancy between Mayfield’s and Lopez’s versions of

the initial breach, decided that they needed to meet with Lopez again to give him “the

opportunity to put his . . . story on the table.” Tr. 563.

On September 19, Douglas and operations coordinator Joe Contreras met with Lopez and

his union representatives Terry Howard and Tim Galvan. Tr. 153, 415, 417. Douglas gave

Lopez, Howard and Galvan unsigned copies of Lopez’s, Mayfield’s and Carter’s written

statements. Tr. 415-17; Exs. R-2, R-3, R-4. Douglas and Contreras left the room while Lopez

and his representatives reviewed the statements. Tr. 417. When they re-entered, Douglas asked

Lopez whether the handwritten statement was, in fact, his, and Lopez replied “can’t answer

that.” Tr. 417-18. Douglas then discussed Mayfield’s and Carter’s statements with Lopez and

his representatives, who underlined the parts of the statements which they believed to be

inaccurate. Tr. 421-23; Ex. R-5 at 2-3. Douglas then asked Lopez to submit another written

statement. Tr. 424. Howard responded that Lopez was in no shape to give a statement,

because he was stressed out from discovering that Sherwin had locked him out of the Plant

earlier that morning. Tr. 424. After a short break, Lopez signed the original statement. Ex. R-2. 

The next day, Douglas held a meeting with Buick and other managers to discuss the

results of the investigation and discipline for Mayfield, Carter and Lopez. Tr. 433-34, 437. 

Because Douglas was their supervisor, he presented information to the managers about the

incident and their disciplinary records. Tr. 434; Ex. R-30 at 76. After Douglas’ presentation, the

managers agreed to recommend that Mayfield be suspended with a view toward termination, that

Carter be suspended only, and that Lopez be suspended pending further investigation which, as

in Mayfield’s case, was intended to result in termination. Tr. 436, 438, 447. After the meeting,

Buick summarized the managers’ discussion in an email. Ex. R-31.

On September 21, Sherwin issued to Lopez an Hourly Personnel Action, which notified

him that he was suspended for five days pending further discipline for “failing to notify coworkers of the red tag status of 5-8 heater and obstructing an ongoing safety investigation into

the 5-8 heater incident.” Tr. 472; Ex. R-16. Pursuant to the managers’ recommendation that

Lopez be terminated, Vazquez reviewed the documentation, including Lopez’s personnel file,

and concurred with the recommendation; Sherwin terminated Lopez on October 19, 2011. Tr.

564-65, 574. 

 III. Findings of Fact and Conclusions of Law

In order to establish a prima facie case of discrimination under section 105(c) of the Act,

a complainant must prove by a preponderance of the evidence “(1) that he engaged in a protected

activity, and (2) that the adverse action was motivated in any part by the protected activity.”7

36 FMSHRC Page 734
7

(...continued)

against . . . any miner . . . because such miner . . . has filed or made

a complaint under or related to this chapter, 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 . . . or

because such miner . . . has instituted or caused to be instituted any

proceeding under or related to this chapter . . . or because of the

exercise by such miner . . . on behalf of himself or others of any

statutory right afforded by this chapter.

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800

(Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d

1211 (3d Cir. 1981). The Commission has noted that “direct evidence of motivation is rarely

encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on behalf

of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds

sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Circumstantial

evidence may include: 1) coincidence in time between the protected activity and the adverse

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

activity; and 4) disparate treatment. The more that hostility or animus is specifically directed

toward the protected activity, the more probative it is of discriminatory intent. Id. at 2510.

 Once the complainant has established a prima facie case, “[t]he operator may attempt to

rebut [the] prima facie case by showing either that the complainant did not engage in protected

activity or that the adverse action was in no part motivated by protected activity.” Sec’y of

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981). 

The operator may also affirmatively defend its actions by proving, by a preponderance of the

evidence, that it was motivated by both the miner’s protected and unprotected activities, and

would have taken the adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at

818. The Commission has explained that an affirmative defense should not be “examined

superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4

FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must

“determine whether they are credible and, if so, whether they would have motivated the

particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). 

The Commission has explained that “pretext may be found, for example, where the asserted

justification is weak, implausible, or out of line with the operator's normal business practices.” 

Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). 

However, the Commission has also stated that “[its] judges should not substitute for the

operator’s business judgment [their] views of “good” business practice.” Chacon, 3 FMSHRC at

2516.

36 FMSHRC Page 735
 A. Prima Facie Case

For the reasons set forth below, I find that the Secretary has successfully made out a

prima facie case by showing that Lopez engaged in protected activity and was terminated, at

least in part, because of his protected activity. 

Sherwin concedes that the following events constitute protected activity: 1) Lopez made

three hazard complaints to MSHA between 2008 and 2010; 2) Lopez reported a leaking valve to

MSHA in the Fall of 2010; 3) Lopez publically expressed his opinion in the “MSHA Threat”

meeting that MSHA’s presence at the Plant would be a “good idea;” 4) Lopez reported that

Mayfield had breached his tags on September 12, 2011; and 5) Lopez filed a Discrimination

Complaint with MSHA on September 28, 2011. Stip. 10; Resp’t Br. at 14-15; Ex. C-7 at 2. 

The Secretary relies upon circumstantial evidence to prove that Sherwin discriminatorily

terminated Lopez because of his protected activity. As will be discussed fully, I find that the

Secretary has established a temporal nexus between Lopez’s protected activity and his

termination, that Sherwin’s management knew of Lopez’s protected activity and demonstrated

animus, and that Lopez was subjected to disparate treatment.

The Commission has found that a discharge occurring approximately two weeks after

protected activity is sufficiently coincidental in time to support a finding of discriminatory

motive. Secretary of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 959 (Sept.

1999). This case presents an even stronger temporal connection, since Sherwin’s managers

initiated the first step of Lopez’s termination on September 20, i.e., recommending that he be

suspended pending further investigation, a mere eight days after Lopez had reported the breach

of his tags. Tr. 358-59. The recommendation to suspend Lopez also came in the month

following the “MSHA Threat” presentation, where his suggestion for increased MSHA oversight

fed his plant-wide reputation as a whistleblower. Tr. 59-62, 191-92, 307-08, 333, 394-96, 470. 

Considering that Sherwin was in a damage-control mode to avoid PPOV status, the impetus to

silence an established complainer is evident. 

Sherwin has acknowledged that it was aware of Lopez’s protected activity. Stip. 11. The

Commission has recognized that an operator’s knowledge of protected activity “is probably the

single most important aspect of a circumstantial case.” Chacon, 3 FMSHRC at 2510. 

CEO Tom Russell’s and David Buick’s reactions to Lopez’s complaints establish

Sherwin’s hostility toward Lopez’s protected activity at the senior management level. In

Morgan v. Arch of Illinois, the Commission reversed the judge for failing to consider

circumstantial evidence indicating the unlikelihood that a lower-level decision maker was

oblivious to the animus of an upper-level manager toward a miner who had engaged in protected

activity. 21 FMSHRC 1381, 1390-92 (Dec. 1999). Specifically, the upper-level manager’s

dislike of the miner was so well-known, that it became the subject of jokes by several miners. 

Id. at 1390. I fully credit Howard’s testimony that Russell viewed Lopez so negatively, that he

believed Lopez to have intentionally created safety hazards to bring MSHA to the Plant. Tr.

36 FMSHRC Page 736
148. Since Russell had expressed his disdain for Lopez to hourly workers such as Gomez, it is

highly probable that he made disparaging remarks about Lopez to supervisors such as Douglas

and Buick. Tr. 59-60. Buick’s disdain for Lopez’s tendency to contact MSHA rather than

address his safety concerns through Sherwin’s internal procedures, as well as his public

advocacy for MSHA presence at the Plant, also indicate hostility. Tr. 63-65; Ex. R-30 at 44, 60-

61, 90. Moreover, the Commission has recently reasoned that presumptively negative

characterizations of employees such as “difficult,” are indicative of hostility toward protected

activity. Turner v. National Cement, 33 FMSHRC 1059, 1069 (May 2011). Buick’s

characterization of Lopez as a “crusty old bloke,” given Lopez’s reputation as a complainer,

takes on a negative connotation. Ex. R-30 at 91. 

While Russell and Buick did not initiate the decision to terminate Lopez, it is highly

likely that their negative opinions of Lopez influenced Douglas, their subordinate. Douglas

stated that he made the initial decision to terminate Lopez and, since he controlled the

information imparted to the other managers about the investigation, it is highly likely that he

influenced their recommendation. While Vazquez reviewed and concurred with Lopez’s

recommended discipline, his paper review was merely cursory. Thus, I find that Douglas was

the management official responsible for Lopez’s termination. Tr. 448-449, 513, 572; Ex. R-30 at

76. Additionally, despite Lopez’s recognition that Douglas is a “gentleman” who has treated

him fairly and respectfully, Lopez’s thinly veiled threat to contact MSHA about problems at the

Plant provides ample motivation for animus on the part of Douglas, as exemplified by Douglas’

urging that Lopez give Sherwin an opportunity to fix the problems about which he complained. 

Tr. 249, 394-95. 

Sherwin’s discriminatory motivation is also evidenced by its disparate treatment of

Lopez in assessing discipline for the three employees involved in the condensate release

incident. Mayfield, who was serving a one-year probationary period for performance issues,

including concerns that he worked unsafely, was fired, and clearly got his due. Tr. 434-35. 

Carter, however, is an entirely different matter. Carter, a safety supervisor tasked with training

employees in safe work procedures, demonstrated highly egregious conduct. He directed a

subordinate supervisor to repeat his breach of Lopez’s tags on the 5-8 heater, thereby placing

Lopez in harm’s way a second time. Alarmingly, Carter did not recognize that his conduct

violated Sherwin’s LO/TO policy until he was verbally reprimanded by his supervisors. Tr. 345-

48. Carter’s lack of awareness of the company’s LO/TO policy - - a safety policy that he should

have been overseeing - - was apparently of little concern to Sherwin, as demonstrated by its

amplification of Carter’s clean disciplinary record, as well as his contriteness and admission that

his breach was the result of a “brain-fade.” Indeed, Sherwin gave Carter a slap on the wrist by

placing him on a one day suspension and four days administrative leave. Tr. 542; Exs. R-30 at

24-26, R-31. If anything, some of Sherwin’s managers believed that the sentence was too heavyhanded, questioning whether Carter should receive any discipline at all, since, after all, he was

just investigating the initial breach. Tr. 438-440. On the other hand, Lopez, the non-supervisory

employee, was held responsible for his supervisors’ lack of safety protocol, and fired. 

36 FMSHRC Page 737
While Buick testified that Sherwin’s expectations of salaried employees, and particularly

SSTs, are greater than for hourly workers, Sherwin’s respective treatment of Carter and Lopez

would seem a reversal of expectations. Ex. R-30 at 84. The operator virtually excused Carter’s

offense while, on the other hand, blowing out of proportion Lopez’s minor, if any, involvement. 

The only reasonable rationale for such lopsided treatment is Lopez’s reputation as a

whistleblower, and Carter’s as a team player. 

Therefore, I find that the Secretary has established that Sherwin’s termination of Lopez

was motivated by his protected activity. I also find that Sherwin has not proven that it was in no

way motivated by Lopez’s protected activity in its decision to terminate him and, therefore, that

it has failed to rebut the Secretary’s prima facie case.

 B. Affirmative Defense

The Hourly Personnel Action specifies two reasons for suspending Lopez pending further

discipline: failure to warn co-workers of the red tag status of the 5-8 heater and obstructing the

investigation. Ex. R-16. At hearing, however, Sherwin changed horses in midstream, by

abandoning the first charge and shifting its defense exclusively to the second charge, that Lopez

was not forthcoming with information and obstructed the investigation. Resp’t Br. at 21-23; 

Tr. 531-32.

After the September 20 management meeting, Buick’s email, approved by Douglas,

stated that Lopez’s failure to “take action to prevent his supervisor breaching TOLO [LO/TO]

procedures,” was his “first offense,” and the fact that he “stood by and did not take action to stop

area SST breaching tagging procedures,” was his “second offense.” Ex. R-31; Tr. 540-42. 

Indeed, Buick testified at his deposition that the managers partially based their recommendation

on the fact that Lopez knowingly and willfully allowed others to breach his tags. Ex. R-30 at 28. 

At hearing, however, Douglas testified that Lopez would not have been terminated and, in fact,

no offense would have been committed, if he had just admitted that he had allowed his

supervisors to breach his tags. Tr. 531-32. Moreover, in its post-hearing argument, Sherwin

abandons the failure to warn defense and relies solely on the obstruction charge to justify

Lopez’s termination: 

What ultimately drove Douglas to recommend Lopez’s termination was his belief

that Lopez was untruthful during the investigation, not because he believed that

Lopez had knowingly allowed Mayfield to breach his tags. In fact, Douglas

agreed that he would not have recommended termination had Lopez admitted that

Mayfield’s version of events was accurate. 

 Resp’t Br. at 21-22. Sherwin’s abandonment of the failure to warn charge is easily explained,

given that the charge unreasonably saddles Lopez with the burden of bearing responsibility for

his supervisors’ unsafe and reckless conduct. Such logic turns the hierarchical structure upside

down, such that the student takes on the role of the teacher. I find that the failure to warn charge

is simply unworthy of credence and, based on Sherwin’s shift from that claim, it appears that the

36 FMSHRC Page 738
operator has drawn the same conclusion. Consequently, my analysis now focuses on the second

charge, that Lopez obstructed the investigation. 

Sherwin claims that it was very troubled by Lopez’s lack of cooperation in the ensuing

investigation. Resp’t Br. at 21. It bases its conclusion primarily on the discrepancies between

Mayfield’s and Carter’s accounts on the one hand, and Lopez’s account on the other, as well as

Lopez’s “can’t answer that” response to Douglas when presented with a handwritten statement

for his verification; Sherwin fully credits the supervisors’ accounts that Lopez knew what

Mayfield was planning to do. Resp’t Br. at 21-23; Tr. 443; Exs. R-3, R-4, R-5. According to

Sherwin, it was forced to make a credibility determination as to whether Lopez was lying. 

Resp’t Br. at 22. In support of its argument, it cites Sec’y of Labor on behalf of Owens v.

Drummond Co., Inc., a case in which the judge found that the operator affirmatively defended its

firing of miners who had engaged in protected activity, because it reasonably believed that they

were stealing company property and/or selling drugs. 25 FMSHRC 594, 608-10 (Oct. 2003)

(ALJ Weisberger). Similarly, Sherwin reasons, since Douglas’ belief that Lopez was untruthful

was reasonable, it was justified in terminating him. The reasonableness of Douglas’ belief is

highly suspect, however, given that the evidence of the alleged pre-breach verbal exchange

between Mayfield and Lopez essentially boils down to Mayfield’s word against Lopez’s. It

would seem that it never occurred to Douglas that Mayfield and Carter had reason to modify

their accounts of the incident in order to mitigate the egregiousness of their respective breaches;

this is especially true of Mayfield, who was already on probation. 

In Turner, the Commission set forth three ways in which a complainant may challenge

the credibility of an operator’s affirmative defense. A complainant may establish that the

operator’s proffered reasons have no basis in fact, i.e., they are factually false. 33 FMSHRC at

1073. A complainant may show that the proffered reasons did not actually motivate the

discharge, i.e., a complainant admits the factual basis underlying the employer’s proffered

reasons and that such conduct could motivate dismissal, but attacks the credibility of the

proffered reasons indirectly by showing circumstances which tend to prove that an illegal

motivation was more likely than the legitimate business reasons proffered by the employer. 

Id. Finally, a complainant may show that the employer’s proffered reasons were insufficient to

motivate termination, i.e., other employees were not terminated even though they engaged in

conduct substantially similar to the conduct which formed the basis of the complainant’s

termination. Id. The evidence clearly demonstrates that the defense Sherwin elected to advance,

that Lopez was untruthful and uncooperative, did not actually motivate his discharge and, under

the second Turner approach, is unworthy of credence. 

Any adverse conclusion that Sherwin drew respecting Lopez’s behavior is based on a

sham investigation that amounted to a witch hunt designed to fire Lopez. Starting with the RCA

Meeting on September 14, Sherwin demonstrated to Lopez that it was skewing the facts against

him, despite management’s claim of wanting to give him opportunities to tell his side of the

story. Tr. 78, 411, 563. In fact, Sherwin had already decided to fire Lopez before meeting with

him again on September 19. Sherwin had locked Lopez out of the Plant prior to that meeting. 

Moreover, I credit Howard’s testimony that he observed Douglas and Contreras in possession of

36 FMSHRC Page 739
the Hourly Personnel Action in that meeting, which leads to a reasonable conclusion that the

document officially terminating Lopez had been written up prior to the conclusion of the

investigation. Tr. 153, 156, 158-59, 424; Ex. R-16. That document, itself, is telling. Douglas

mischaracterized Lopez’s suspension as “pending further discipline” rather than “pending further

investigation” and, again, he made the same mistake at hearing, then corrected his terminology. 

Ex. R-16, Tr. 447-48. Barring Lopez’s access to the Plant on the morning of September 19, in

conjunction with credible evidence that the written disciplinary action existed, at least, as of that

date, is compelling evidence that Sherwin had already settled on its course of action and Lopez’s

fate had been pre-determined. In light of Sherwin’s obvious attempt to transfer the lion’s share

of the blame from the offenders, Mayfield and Carter, to Lopez, the victim of the condensate

release, Lopez’s reticence during the so-called investigation is not only explainable, but

reasonable; any cooperation on his part would have amounted to ammunition for his undoing. 

Beginning with the September 20 management meeting, Sherwin was unconcerned with

objectively assessing discipline, and was solely focused on crafting rationales for salvaging

Carter, while terminating Lopez. Despite Carter’s role as a safety supervisor and his obvious

LO/TO breach, the managers were slow to recognize that he had done anything wrong at all, and

made much ado about his clean record and service to Douglas’ as his “right-hand safety man.”

Tr. 438, Ex. R-30 at 24. Moreover, Sherwin’s management as a whole was largely dismissive of

Carter’s lack of awareness of safety protocol and endangerment of Lopez. Regarding Lopez,

however, the company glossed over his good work record and, appreciating the flimsiness of

requiring him to supervise his supervisors, put all its weight behind characterizing him as a liar

in its sham investigation. Given that Lopez was essentially being railroaded, I find that his

behavior was prudent rather than uncooperative. 

Douglas elected to bypass Sherwin’s progressive discipline policy to fast-track Lopez’s

firing, ostensibly based on the severity of Lopez’s misconduct. However, not only was Lopez’s

responsibility for the condensate release, an event that could have seriously injured him,

negligible, but it would have been very difficult to fire him utilizing progressive discipline, given

his admittedly clean disciplinary record. Tr. 521-23. 

Despite Sherwin’s attempt to abandon its “failure to warn” charge during the course of

this proceeding, it was, nevertheless, officially documented as one of the two reasons for

Lopez’s termination. I find, similarly, that it fails, but under the third Turner approach. Carter

not only failed to warn Mayfield against breaching Lopez’s tags but, in fact, directed him to do

so; for this infraction, Carter was afforded the utmost leniency. 

If Douglas really believed either or both of the charges, that Lopez had a duty to warn his

supervisors and that he was being untruthful and uncooperative, it was unreasonable to forego

progressive discipline and terminate him based upon those beliefs. Lopez’s infractions, under

any reasonable standard, could not have been more egregious than the actual breaches,

themselves. 

36 FMSHRC Page 740
Therefore, based on my finding that the reasons Sherwin gives for terminating Lopez,

that he failed to warn his supervisors against breaching his tags and that he lied during the

ensuing investigation, are unworthy of credence, Sherwin has failed to establish an affirmative

defense for firing Lopez. The sheer weight of the circumstantial evidence makes it far more

likely than not that Sherwin’s reasons for terminating Lopez were pretextual.

In conclusion, I find that the Secretary has established a prima facie case of

discrimination under section 105(c) of the Act. I also find that Sherwin has failed to either rebut

the Secretary’s prima facie case or affirmatively defend its termination of Lopez. Therefore,

based on a thorough review of the record, I conclude that the Secretary has proven, by a

preponderance of the evidence, that Sherwin discriminatorily terminated Lopez, and that Lopez

is entitled to relief.

IV. Penalty

While the Secretary has proposed a civil penalty of $30,000.00 for this violation, the

judge must independently assess the appropriate penalty based on the statutory penalty criteria. 

Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

Sherwin is a large operator and, absent any contention by the operator to the contrary, I find that

the proposed penalty will not affect its ability to continue in business. Sherwin’s relevant history

of violations contains no charges under section 105(c) of the Act and, therefore is not an

aggravating factor in assessing an appropriate penalty. The willful decision to terminate Lopez,

a well-known safety advocate who had a history of reporting safety concerns to management and

contacting MSHA, was blatant and influenced by the highest levels of Sherwin’s management. 

Therefore, the violation was very serious, since it not only deprived an otherwise good worker of

employment, but also served as a chilling effect on other miners who would consider raising

safety concerns within the company or with MSHA. Therefore, based on the seriousness and

willfulness of Sherwin’s unlawful treatment of Lopez, I find that a penalty of $45,000.00 is

appropriate. 

ORDER

Based on my conclusion that Sherwin Alumina, LLC, and its Successors discriminated

against Carlos Lopez when he was suspended on September 21, 2011, and terminated on

October 19, 2011, the Discrimination Complaint is GRANTED. Sherwin Alumina, LLC, and its

Successors are ORDERED TO REINSTATE Carlos Lopez to the same position he held prior

to his discharge or to a similar position at the same rate of pay and with the same or equivalent

duties assigned to him. Additionally, within ten days of the date of this Decision, counsels for

the Secretary and Sherwin Alumina, LLC, and its Successors are ORDERED TO CONFER to

determine the appropriate back pay and interest to be awarded to Carlos Lopez for any days lost

due to his suspension and termination. The parties shall also confer and agree regarding any

other appropriate relief required to make Carlos Lopez whole for the period that he was illegally

suspended and terminated. Within 15 days of the date of this Decision, counsels shall report to

36 FMSHRC Page 741
8

 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket

number and case number.

me jointly in writing the results of their discussions, which shall result in a Final Decision and

Order awarding the agreed-upon relief. If counsels are unable to agree, they shall advise me

jointly in writing within 15 days of the date of this Decision, which shall result in issuance of an

Order regarding submission of additional evidence on the issue of relief.

Further, and effective immediately, Sherwin Alumina, LLC, and its Successors are

ORDERED TO CEASE AND DESIST from interfering with the section 105(c) rights of

Carlos Lopez while he remains in their employ, expunge from Carlos Lopez’s employment

records all references to the circumstances giving rise to his unlawful discharge, and provide a

neutral employment reference for Carlos Lopez, if requested.

Further, within 30 days of the date of this Decision, Sherwin Alumina, LLC, and its

Successors are ORDERED TO PAY a civil penalty of $45,000.00 for the violation of section

105(c) of the Act.8

 

Carlos Lopez’s TEMPORARY REINSTATEMENT SHALL REMAIN IN EFFECT

until a FINAL DECISION ON RELIEF is issued.

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck

Administrative Law Judge

36 FMSHRC Page 742
Distribution: (Certified Mail)

 Elizabeth M. Kruse, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin

Street, Suite 501, Dallas, TX 75201

 Josh Bernstein, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street,

Suite 501, Dallas, TX 75201

 Christopher V. Bacon, Esq., Vinson & Elkins, LLP, First City Tower, Suite 2500, 1001 Fannin

Street, Houston, TX 77002

 Carlos Lopez, 6821 South Heaven, Corpus Christi, TX 78412

 

/ss

36 FMSHRC Page 743
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

 March 19, 2014 

 

 

DECISION

Appearances: Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, 

 618 Church Street, Suite 230, Nashville, TN for the Secretary 

 Stephen Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East 

 Stephen Foster Avenue, P.O. Box 327, Bardstown, KY for Respondent 

Before: Judge Steele 

 These cases are before me on petitions for assessment of civil penalties filed by the 

Secretary of Labor (the “Secretary”), acting through the Mine Safety and Health Administration 

(“MSHA”) against Nally & Hamilton Enterprises, Inc. (“Nally” or “Respondent”) at its Balkan 

and Chestnut Flats mines pursuant to Sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The Secretary seeks 

civil penalties in the amount of $10,922.00 for three alleged violations of the Secretary’s 

mandatory safety standards for underground, surface or other mines. The parties presented 

testimony and documentary evidence at the hearing which was conducted on May 29, 2013 in 

London, Kentucky. At the conclusion of the evidence, Respondent withdrew its contest of 

Citation No. 8369110 and agreed to pay $900.00, as assessed by the Secretary. For the reasons 

set forth below, I vacate Citation Nos. 8369111 and 8369121. 

STIPULATIONS 

 1. Nally & Hamilton Enterprises, Inc. is subject to the Federal Mine Safety and 

 Health Act of 1977.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

NALLY & HAMILTON ENTERPRISES, 

 INC., 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2012-1031 

A.C. No. 15-18986-287861-01 

Mine: Balkan 

Docket No. KENT 2012-1248 

A.C. No. 15-19076-290524 

Mine: Chestnut Flats 

36 FMSHRC Page 744
 2. Nally & Hamilton Enterprises, Inc. has an effect upon interstate commerce within 

 the meaning of the Federal Mine Safety and Health Act of 1977. 

 3. Nally & Hamilton Enterprises, Inc. is subject to the jurisdiction of the Federal 

 Mine Safety and Health Review Commission and the presiding Administrative 

 Law Judge has the authority to hear this case and issue a decision. 

 4. Nally & Hamilton Enterprises, Inc. operates the Balkan Mine, I.D. No. 15-18986. 

 5. The Balkan Mine had 181,090 hours worked in 2011. 

 6. Nally & Hamilton Enterprises, Inc. operates the Chestnut Flats Mine, I.D. No. 15- 

 19076. 

 7. The Chestnut Flats Mine produced 385,017 tons of coal in 2011. 

 8. A reasonable penalty will not affect Nally & Hamilton Enterprises, Inc.’s ability 

 to remain in business. 

Government Exhibit 1.1

CITATION NO. 8369111 

 Citation No. 8369111 was issued under Section 104(a) of the Act on December 8, 2011 at 

7:20 a.m. and was based upon the inspector’s observation of a violation of 30 C.F.R. § 

77.1607(b). This safety standard, entitled “Loading and haulage equipment; operation,” states, 

“[m]obile equipment operators shall have full control of the equipment while it is in motion.” Id. 

 In his narrative, the inspector found [All errors copied as written]: 

Due to the slick haul road with 10 to 14 inches of muddy material (the determined 

responsibility of the operator to maintain), equipment including personnel 

vehicles and coal truck operator, observed hauling on the slick haul road, were not 

in full control while the equipment was in motion. At a test speed of 5 miles an 

hour a personnel vehicle slide (like a sled) thru the intersection, into oncoming 

traffic including Tractor and Trailor Coal Trucks and a swivel tail rock truck. 

Note: This citation was one of the contributing factors that contributed to the 

issuance of imminent danger order #8369109 issued on 12-08-2011. therefore no 

abatement time was set. 

GX-3. 

 1

 Hereinafter, the Secretary’s exhibits will be referred to as “GX” followed by a number. 

Similarly, Respondent’s exhibits will be referred to as “RX” followed by a number. The 

transcript will be referred to as “Tr.” followed by the corresponding page number. 

36 FMSHRC Page 745
 The inspector noted that the risk of injury or illness was reasonably likely and significant 

and substantial (“S&S”) in nature. Id. The injury could be reasonably expected to result in lost 

workdays or restricted duty and would affect one person. Id. The negligence was assessed as 

moderate. Id. The Citation was terminated when the road was graded and a berm of correct 

height was constructed. Id. The Secretary proposed a penalty of $900.00 for the alleged 

violation. 

1. The Secretary’s Evidence2

 MSHA inspector John Sizemore (“Sizemore”) testified that the roadway had between ten 

to fourteen inches of muddy material that was very slick and extended up the road for 

approximately 100-150 feet. Tr. 20-21. This measurement was obtained by tape measure in four 

or five different locations. Tr. 21. In order to test the conditions, he decided to drive his fourwheel drive Jeep Laredo down the hill. Tr. 20-21. When he hit the brakes at a speed of five to 

ten miles per hour, he testified that he slid through the entire area, including a stop sign at the 

bottom of the hill. Tr. 21, 33. 

 Sizemore explained that the hazard associated with the condition is that a vehicle would 

try to stop and slide through the intersection at the bottom of the hill. Tr. 22. During his 

inspection, he observed a fully loaded back-dump3

 hauling to and from the preparation plant to 

the lower level of the mine. Tr. 22-23. He testified that he stopped the driver, Herschel Collett 

(“Collett”), and questioned him about the road conditions. Tr. 23. According to Sizemore, 

Collett stated, “I look both ways before I go down that area and then I don’t touch my brakes, 

and that’s the way I get through there without – and maintain control.” Tr. 24. Aside from 

Collett, Sizemore observed several vehicles on the main road which would be used in excess of 

seventy-five to one hundred times a day. Tr. 23. At that time, Collett issued the citation at issue 

because Respondent is required to maintain the roadway so that a person could have full control 

of his/her vehicle. Tr. 24-25. 

 Sizemore determined that the condition was reasonably likely to result in a reasonably 

serious injury and S&S because, according to him, the roadway was very slick, and there was no 

 2

 The findings of fact are based on the record as a whole and my careful observation of 

the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken 

into consideration the interests of the witnesses, or lack thereof, and consistencies, or 

inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In 

evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to 

provide detail as to each witness’s testimony is not to be deemed a failure on my part to have 

fully considered it. The fact that some evidence is not discussed does not indicate that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not 

required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). 

3

According to Sizemore, a back-dump is an articulating truck used to haul materials. It 

appears that this refers to an articulated hauler, which is a heavy duty dump truck composed of 

two basic units: the front section called the tractor and the rear section called the dump body. It 

is typically used on rough terrain. 

36 FMSHRC Page 746
control of a vehicle in this area. Tr. 25. He further testified that there was no berm on the outer 

bank of the road, a fact confirmed by Collett. Tr. 26, 49. The haul road would likely be traveled 

ten or more times a day. Tr. 26. He theorized that a vehicle veering off the road was likely to 

result in broken bones or lacerations, which are lost workdays or restricted duty type injuries. 

Tr. 26. He believed that the condition was the result of Respondent’s moderate negligence 

because the condition was in plain view, even to the casual observer. Tr. 25. Further, Sizemore 

testified that the gravel was located a few hundred yards from the cited area, and all of the 

equipment was at the preparation plant ready to be used. Tr. 36-38. 

 At the same time, Sizemore issued an imminent danger order under Section 107(a) of the 

Act because he believed that an injury would occur before the condition could be corrected.4

 Tr. 

27-28. His concerns were that the roadway was very slick, a tandem coal truck was traveling 

down the roadway, the berm was insufficient or nonexistent in a crucial area, and an accident 

could occur if travel was allowed to continue. Tr. 27-28. For this reason, Sizemore stopped the 

truck that was actively working and asked the driver, Hershel Collett (“Collett”) to park above 

the slick area. Tr. 29. The citation, as well as the imminent danger order, were terminated when 

the mud was removed, gravel was laid and the berm was constructed. Tr. 29-30. Plant Manger 

Wes Thomas worked with Sizemore to abate the condition. Tr. 29, 38-39. 

2. Respondent’s Evidence 

Hershel Collett hauls coal for Respondent, but is self-employed. Tr. 40-41. On the day 

that the citation was issued, he was operating his M800 tandem truck, which can haul 

approximately thirty-eight tons of coal at a time. Tr. 41-42. In a typical day, he makes eight to 

ten runs hauling coal to the preparation plant from a mine belonging to a different operator. Tr. 

42. 

 When stopped by Sizemore, Collett estimated that he was stopped forty to fifty feet 

above the slick area, which he surmised was steeper than the road in question. Tr. 42-43. He did 

not recall telling Sizemore that the road was slick and, in fact, testified that he had made one 

earlier run and had no problems with sliding. Tr. 43-44. He also stated that he had not noticed 

as much mud on the road as Sizemore. Tr. 43. While he testified that there was gravel on the 

road, he stated that it had been raining for four or five days and some of the gravel had 

“disappeared.” Tr. 43. Sizemore, on the other hand, could not recall whether it had been raining 

either on the day that the citation was issued or in the previous days. Tr. 36. Regardless, Collett 

stated that he had no trouble hauling coal or slowing down. Tr. 43-44. If he had, Collett said 

that he would not have hauled the coal in dangerous conditions and would have alerted 

Respondent to the conditions as he had in the past. Tr. 44, 47-48. 

 In explanation of what Collett said to Sizemore about the brakes, Collett testified that he 

does not touch his brakes because the truck is “geared down,” and the cited area of the road is 

not particularly steep. Tr. 45, 49. When fully loaded, the truck typically travels at three to four 

miles per hour on the road. Tr. 46. He argued that he would not use the brakes even in the best 

 4

 The specific circumstances of the 107(a) order are not at issue here, and I make no 

judgment as to its validity. It is only referenced to give perspective to Inspector Sizemore’s 

observation of the conditions. 

36 FMSHRC Page 747
possible conditions in order to prevent the brakes from getting hot. Tr. 45. According to Collett, 

the lower the gear that the truck is in, the less the brakes are used because they become very hot 

and would eventually fail. Tr. 45. Further, it was unnecessary for Collett to stop at the bottom 

of the hill because he has the right of way and traffic proceeding from the other direction must 

stop. Tr. 49. Finally, he added that, the vast majority of the time, he is the only coal truck 

operating on the road. Tr. 46. He only asked for help when he was behind. Tr. 46. 

 3. Contentions of the Parties

 The Secretary contends that, regardless of whether the inspector actually observed a 

vehicle out of control, Respondent is required to maintain the roadway in a condition allowing 

for full control of a vehicle. Because the roadway was slick, traveled in excess of ten times a day 

and no berm existed, he states the citation was correctly designated as reasonably likely to result 

in a reasonably serious injury and S&S. In support, the Secretary argues that if an accident were 

to occur, broken bones and lacerations would be the minimum injury. Finally, although the 

inspector did not know how long the condition existed, the Secretary states that the road was in 

plain view, and even the most casual observer would see the condition. Therefore, he asserts that 

Respondent’s negligence was moderate. 

 Respondent argues that no evidence was presented to suggest that any of Respondent’s 

employees or contract employees failed to maintain full control of a vehicle; therefore, the 

citation should be vacated. It states that the presence of ten to fourteen inches of mud on the 

roadway and Collett’s failure to use brakes do not substantiate the Secretary’s claims. In the 

event that the citation is found to be valid, Respondent states that the violation is not S&S 

because the first two prongs of the Mathies test have not been met. 

 4. Findings of Fact and Conclusions of Law 

I find that the Secretary has not proven his case and, therefore, Citation No. 8369111 is 

vacated. Sizemore cited Respondent for a violation of 30 C.F.R. § 77.1607(b) which requires 

equipment and vehicle operators to maintain full control of vehicles at all times while in motion. 

As proof of this, Sizemore conducted his own experiment in which he testified that he lost 

control of his own vehicle. He fully admits that he never observed any of Respondent’s 

employees on the roadway, but explains that, given the unsafe nature of the road, he did not have 

to actually witness a vehicle out of control. I do not, however, agree with this assessment. 

 The plain language of 30 C.F.R. § 77.1607(b) states that an operator shall have full 

control of a vehicle while it is in motion. As further evidence of the regulation’s intent, it is 

specifically entitled “Loading and haulage equipment; operation.” 30 C.F.R. § 

77.1607(b)(emphasis added). Other than Collett’s truck, which was stopped prior to reaching the 

section of the road at issue, Sizemore did not observe a single vehicle operating on the roadway. 

At hearing, he testified that his only proof of lack of vehicle control was the operation of his own 

Jeep. Allowing MSHA to conduct its own experiments in the absence of any witnesses to prove 

the existence of violations is a dangerous course of action. Given that none of Respondent’s 

employees were observed having difficulty with vehicle control, I find that the Secretary is 

unable to prove his case, and the citation must be vacated.

36 FMSHRC Page 748
 To be clear, I am not suggesting that slick roadbeds are not a violation of the regulations; 

rather, I find that slick roadbeds are not a violation of this particular standard. In the instant case, 

Respondent could have been cited for any of the regulations pertaining to roadway maintenance. 

30 C.F.R. § 77.1605(k) requires that berms be provided on elevated roadways. Further, 30 

C.F.R. § 77.1605(m) requires, among other things, that roadbeds be maintained in a manner 

consistent with the speed allowed and type of haulage done. While the Secretary may have been 

able to prove his case under either of these regulations, he did not cite Respondent for these nor 

did he request an amendment to the cited regulation. Given all of the information presented and 

the testimony at hearing, I am constrained to find that the Secretary did not prove his case. 

CITATION NO. 8369121

 Citation No. 8369121 was issued under Section 104(d)(1) of the Act on December 16, 

2011 at 8:00 a.m. and was also based upon the inspector’s observation of a violation of 30 C.F.R. 

§ 77.1607(b). 

 In his narrative, the inspector found [All errors kept as written]: 

The operator has not maintained the entire length of the haul road from the 

contract coal mine to the preparation plant. 1 to 4 inches of muddy material was 

present along the haul road and equipment including personnel vehicles and coal 

truck, were observed hauling on the slick haul road, were not in full control while 

the equipment was in motion. At a test speed of 10 miles an hour a personnel 

vehicle slide (like a sled) in straight areas and in the curves at different areas of 

the haul road. The operator has posted a speed limit of 35 mph. along this road. 

Note: This citation was one of the contributing factors that contributed to the 

issuance of imminent danger order #8369120 issued on 12-16-2011. therefore no 

abatement time was set. 

Note: This same type citation (#8369111) and resulting imminent danger order 

(#8369109) was issued for this same condition, at as different location, along this 

same haul road on 12-08-2011, and was a factor in the consideration of high 

negligence classification of this citation. 

Note: The operator has engaged in aggravated conduct constituting more than 

ordinary negligence in that the operator was aware that the haul road was wet 

slick and muddy and that contract employees were traveling this haul road. This 

violation is an unwarrantable failure to comply with a mandatory standard. 

GX-5. 

 The inspector noted that the risk of injury or illness was highly likely and S&S in nature. 

Id. The injury could reasonably be expected to result in permanently disabling injuries affecting 

one person. Id. The negligence was assessed as high, as well as an unwarrantable failure to 

36 FMSHRC Page 749
comply with a mandatory standard (“Unwarrantable Failure”). Id. The Citation was terminated 

when the operator applied gravel and graded the roadway from the preparation plant to the mine. 

Id. The inspector observed that the operators should not be able to maintain control. Id. The 

Secretary assessed a penalty of $9,122.00 for the alleged violation. 

1. The Secretary’s Evidence

 Sizemore testified although the citation was issued to a different mine, the entire road is 

three to four miles long and runs from the Chestnut Flats Mine to the Balkan Preparation Plant. 

Tr. 53-54. The road is designed to have steep inclines followed by level areas where brakes can 

be cooled. Tr. 54. According to Sizemore, the road had one to four inches of mud in spots, 

several of which were on inclines. Tr. 54-55. Again, this measurement was taken by with a tape 

measure. Tr. 54. The posted speed limit on the haul road was thirty-five miles per hour; 

however, Sizemore testified that he slid at a test speed of ten miles per hour. Tr. 55. 

 Sizemore asserted that the road was wet and muddy, and there was no visible gravel on it. 

Tr. 55. When he went around curves in the road, the truck would slide out and he’d have to 

employ the “turn-the-wheel-the-same-way” maneuver to get out of the spin. Tr. 55. Collett and 

the miners traveling to the A&M Coal Company would use this road every day. Tr. 56. By 

Sizemore’s estimate, approximately twenty miners would access it for the day shift, eighteen to 

twenty for the second shift and three to five for the third shift. Tr. 56. Further, he observed a 

Mack truck hauling thirty to forty tons of coal down the incline. Tr. 56. When discussing the 

road with one of Respondent’s employees, Sizemore stated that the outside man told him that he 

slid all the way along the road. Tr. 57. The miner also explained that Respondent graveled the 

haul road when it was first built, but it had not been touched since that time. Tr. 57. 

 Based on Sizemore’s observation, he testified that Respondent violated the standard when 

it did not maintain the road so that the operator of a vehicle would have full control. Tr. 57. The 

three to four miles affected by the condition contained steep inclines and different terrain. Tr. 

62. Sizemore believed it was reasonably likely or highly likely that an accident would occur if 

the condition was left uncorrected. Tr. 62-63. He asserted that a vehicle traveling over the 

embankment or colliding with another vehicle would likely result in broken bones, including the 

possibility of the neck or back, or lacerations, which he categorized as permanently disabling 

injuries. Tr. 63. Because he only saw one person on the road at the time of issuance, he believed 

that only one miner would be affected. Tr. 63. 

 Sizemore further designated the citation as high negligence and an unwarrantable failure 

to comply with a mandatory standard under Section 104(d)(1) of the Act. Tr. 58. He reasoned 

that the condition extended for three to four miles. Tr. 58. The preshift examination indicated 

that the haul road was slick; therefore, management knew about the condition. Tr. 60, 79; GX-6. 

Further, when discussing the issue with General Manager Ted Helton, Sizemore testified that 

Helton stated that at $17.00 per ton, he would shut the mine down before he would gravel the 

road. Tr. 60-61, 78-79. Finally, he had issued a prior citation and imminent danger order to the 

Balkan Mine. Tr. 59, 77. 

36 FMSHRC Page 750
 Given the conditions, Sizemore also issued a 107(a) imminent danger order to stop travel 

on the road. Tr. 64.5

 When Sizemore left the mine, he used the roadway, which was in the 

process of being graded. Tr. 66. He did not terminate the citation and order at that time, 

however, because there was more work that needed to be done. Tr. 66. The citation and order 

were terminated later that day when Respondent graded and graveled the road. Tr. 65. Sizemore 

received information from an unknown source that it had taken ninety to a hundred truckloads of 

gravel to abate the condition. Tr. 79. 

 When asked at hearing whether employees of A&M Coal Company traveled the road 

during the inspection, Sizemore testified that he did not see them. Tr. 68, 71. He stated that only 

Collett asked permission to travel the haul road and Sizemore denied his request. Tr. 68-69. He 

further explained that in terms of A&M Coal Company employees, he worked with the owner of 

the mine, Mark Dotson, and informed him that the road was shut down. Tr. 70. Collett 

acknowledged that there was a side road that the miners typically used when entering and exiting 

the mine. Tr. 90, 92. 

 In response to the video taken by Respondent, Sizemore testified that it did not accurately 

depict the conditions as they existed. Tr. 113. He explained that the road was graded prior to his 

departure on December 16th, so the tire tracks present must have been there from vehicle travel 

after it was graded. Tr. 114-115. 

 2. Respondent’s Evidence

 Collett testified that the haul road had been shut down before his arrival that day, but he 

entered using it because he did not know that an imminent danger order had been issued. Tr. 87-

88. While he admitted that it was muddy, he stated that he was not concerned for his safety 

while driving. Tr. 87-88. Although there was a side access road, he asserted that he saw miners 

entering and exiting the road and believed that Sizemore was still at the mine at that time. Tr. 

89. When he was returned to his vehicle by the owner’s son, they used the road and Collett did 

not notice anything wrong with it. Tr. 88. While Sizemore could not recall whether it was 

raining on that day, Collett testified that it was. Tr. 55, 93. 

 Respondent’s Safety Coordinator Tracey Creech (“Creech”) testified after receiving 

information about the citation and order, he arrived at the mine using the haul road between 

8:00-8:30 a.m. Tr. 101. He stated that he drove his two-wheel drive truck and never slid. Tr. 

97. In the afternoon, he took video of himself driving the road at approximately twenty to 

twenty-five miles per hour. Tr. 100; RX-1. According to Creech, even though there was a lapse 

in time, the road looked essentially as it did upon his arrival. Tr. 102. The gravel trucks where 

working, but the road had not been graded at that time. Tr. 109. Based on his experience, he did 

not believe that emergency vehicles would have any problem accessing the mine if needed. Tr. 

103. 

 Creech stated that it took forty-one loads of gravel to abate the condition, not ninety to 

one hundred as asserted by Sizemore. Tr. 97. He further testified that this was not the first time 

 5

 The imminent danger order is not at issue in this case, and I make no judgment as to its 

validity. 

36 FMSHRC Page 751
that the road had been gravel, even by MSHA’s own records; therefore, the information given to 

Sizemore was completely false. Tr. 107-108. He also affirmed Collett’s testimony that Collett 

alerted Respondent when the road needed to be graveled for safety reasons. Tr. 106-107. When 

he heard about the comments made by Helton to Sizemore, Creech contacted the vice president 

of operations who told him to gravel the road and Helton’s comments would be addressed by 

management. Tr. 104-105. 

 3. Contentions of the Parties

 The Secretary argues that Respondent has the responsibility to maintain the roadway in a 

condition allowing for full control of a vehicle. Observing a vehicle out of control is not a 

necessity. The Secretary further states that the video taken by Respondent does not depict the 

conditions as they existed and should not be credited. He contends that a vehicle operator was 

highly likely to lose control and that broken bones and cuts would be the most likely result of an 

accident. Given this, the Secretary argues that the violation was also S&S. Finally, he argues 

that Respondent’s negligence was high and the violation was an unwarrantable failure because 

the condition was extensive, an imminent danger order had been issued on the road a short time 

before, and Respondent had been advised that the road needed work. The Secretary adds that the 

inspector had to issue an imminent danger order to prompt Respondent to abate the condition. 

 Respondent contends that the Secretary failed to provide any demonstrable evidence that 

any of its employees or contract employees operated a vehicle that was not in full control; 

therefore, the citation should be vacated. It states that even if a violation existed, it was not S&S 

because the first two prongs of Mathies were unproven. It further argues that even if the 

violation is found to be S&S, there is no evidence to support a designation of unwarrantable 

failure. As evidence of this, Respondent points to preshift reports in which the examiner states 

that everything was in good shape, but more rain was expected. It asserts that this shows its 

good faith belief that the condition of the road was acceptable. 

 4. Findings of Fact and Conclusions of Law

For the same reasons as above, I find that the Secretary has failed to prove that 

Respondent violated 30 C.F.R. § 77.1607(b). Sizemore admitted that he did not observe any 

vehicles operating on the roadway and, therefore, did not observe any equipment that was out of 

control. Again, I find that the Secretary may have been able to prove a violation of a standard 

pertaining to the maintenance of the roadbed itself, but he did not prove that vehicles were 

operated without full control. 

 Although not determinative to the outcome of this case, I would also caution the 

Secretary in issuing 104(d) citations based upon, at least in large part, a citation issued to a 

different mine. While I understand that the haul road serves two mines owned by the same 

operator, Section 104(a) of the Act empowers the Secretary to issue a citation to a mine for a 

violation of the Act or its standards. 30 U.S.C. § 814(a)(emphasis added). Nowhere in its 

language does it permit MSHA to issue more serious violations to one mine based on the 

aggravating circumstances found in another. 

36 FMSHRC Page 752
ORDER

 It is ORDERED that Citation No. 8369110 remains as issued. It is ORDERED that 

Citation Nos. 8369111 and 8369121 are hereby VACATED. It is further ORDERED that Nally 

& Hamilton Enterprises, Inc., PAY the Secretary of Labor the sum of $900.00 within 30 days of 

the date of this Decision. 

 /s/ William S. Steele

 William S. Steele 

 Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Stephen Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East Stephen Foster Avenue, P.O. 

Box 327, Bardstown, KY 40004 

/kmb 

 

36 FMSHRC Page 753
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: (412) 920-7240 / FACSIMILE: (412) 928-8689 

March 24, 2014 

SECOND AMENDED DECISION AND ORDER1

Appearances: Patrick W. Dennison, Esq., & Jason P. Webb, Esq., Jackson Kelly, PLLC, 

Pittsburgh, PA for Respondent 

Pamela Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, CO for the Secretary 

Before: Judge Steele 

STATEMENT OF THE CASE 

This proceeding is before me on a petition for civil penalties filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration against Emerald Coal 

Resources, LP (hereinafter “Respondent” or “Emerald”) at the Emerald Mine No. 1 pursuant to 

sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 

820 (hereinafter “the Mine Act” or “the Act”), the Secretary seeks penalties in the amount of 

 1

 The original decision stated that the assessed penalty for Citation No. 8006753 was 

$3,493.00 instead of the correct amount, $3,143.00. 

EMERALD COAL RESOURCES, LP, 

 Contestant, 

 v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

 Respondent, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

EMERALD COAL RESOURCES, LP, 

 Respondent. 

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:

 CONTEST PROCEEDING 

Docket No. PENN 2009-383-R 

Citation No. 8007661; 03/06/2009 

Mine ID 36-05466 

Mine: Emerald Mine No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2009-496 

A.C. No. 36-05466-183943-02 

Mine: Emerald Mine No. 1 

36 FMSHRC Page 754
$12, 265 for two alleged violations of the Secretary’s mandatory safety standards for 

underground mines. The Secretary originally charged Respondent with 10 alleged violations. 

Four were settled prior to the hearing, three were settled during the hearing, and one was 

dismissed as the Respondent agreed to accept the violations as written leaving the remaining two 

alleged violations for decision in Docket No. PENN 2009-496. The three citations that were 

settled during the hearing were Nos. 8006756, 8006758, and 8006759.2

 The terms of the 

settlement were set forth in a written motion, which terms were approved by the court. The 

parties presented testimony and documentary evidence at the hearing conducted on November 

sixth, seventh, and 8th, 2012 in Pittsburgh, PA. 

For the reasons set forth below I affirm Citation Nos. 8006753 and 8007661 and find a 

non-S&S violation of the latter. I also assess civil penalties of $3,143.00 and $5,000.00 

respectively. 

STIPULATIONS 

The Secretary and Respondent agreed that the following stipulations should be included 

in the record: 

1. Emerald is an “operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at 

the coal mine at which the Citations at issue in this proceeding were issued. 

2. Operations of Emerald at the coal mine at which the Citations were issued in this 

proceeding are subject to the jurisdiction of the Mine Act. 

3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designed Administrative Law Judges pursuant to 

Sections 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823. 

4. The individuals who signatures appear in Block 22 of the Citations at issue in this 

proceeding were acting in their official capacity and as authorized representatives of 

the Secretary of Labor when the Citations were issued. 

5. True copies of the Citations at issue in this proceeding were served on Emerald as 

required by the Mine Act. 

6. Emerald demonstrated good faith in the abatement of the Citations. 

7. The penalties that have been proposed will not affect Emerald’s ability to continue in 

business. 

 2

 A Decision Approving Partial Settlement for these eight settled citations was issued 

separately. 

36 FMSHRC Page 755
THE REMAINING CITED VIOLATIONS 

1. Citation No. 8007661

This 104(a) citation was issued on March 6, 2009 at 5:53 p.m. and was based upon the 

inspector’s observation of a violation of 30 C.F.R. §77.200. This safety standard states: 

All mine structures, enclosures, or other facilities (including custom coal 

preparation) shall be maintained in good repair to prevent accidents and injuries to 

employees. 

In his narrative, the inspector found: 

Three structural support columns located on the sixth floor of the prep plant were 

not being maintained in good repair. The second column in the second row from 

the MCC room showed approximately 30 percent width loss on the creek side 

flange were (sic) a seventh floor beam connects to it. The fourth column in the 

same row was found to have 7 areas of width reduction ranging from 

approximately 30 to 50 percent. The fifth column in the same row was found to 

have approximately 30 to 50 percent reduction on all four sides and two holes 

ranging from 1⁄2 inch to 1 inch. 2 previous violations of this standard in the past 2 

year. 

(Government Exhibit 1).3

The inspector noted that the risk of injury or illness for this violation was “reasonably 

likely,” “fatal,” “S&S,” and would have affected 10 persons. He further noted that Respondent 

exhibited “moderate negligence.” The proposed penalty for this citation was $8,209.00. The 

citation was extended on four occasions and was terminated on April 21, 2009 when the repairs 

were completed on the three cited columns.4 The inspector also issued a 107(a) imminent danger 

order which was vacated or terminated following an inspection by an MSHA civil engineer. 

ISSUES 

Did Respondent violate 30 C.F.R. §77.200 and, if so, were these violations significant 

and substantial? What was the degree of gravity and negligence? 

3

 Hereinafter Government Exhibits will be cited as “GX” followed by the number and 

Respondent’s Exhibits will be cited as “RX” followed by the number. 

4

 The inspector also noted that, “[t]his citation is a contributing factor to the issuance of 

the 107(a) Order No. 8007662.” This imminent danger Order is no longer in contest, but will be 

discussed as necessary in this decision. 

36 FMSHRC Page 756
THE SECRETARY’S EVIDENCE 

1. Testimony of Tom McCort 

 Mr. McCort is an inspector trainee for MSHA having just returned to MSHA after 

approximately four years as a surface and mine inspector. His second stint with MSHA began 

approximately one month before this hearing. His private sector experience includes 

approximately three and a half years doing shaft and slope construction maintenance and 

underground maintenance and repair. Additionally, Mr. McCort worked for Local 549 of the 

Ironworkers out of Wheeling for approximately three to three and a half years doing construction 

and maintenance of steel structure, maintenance on building reinforcing bars and generally 

anything related to steel and iron. (Tr. 33-37). 

 Inspector McCort issued this citation because he found some structural columns on the 

sixth floor that had some severe thinning and holes in them and a general thinning of some of the 

structural members that he examined. (Tr. 40). The building examined was a prep plant which 

is a building that is used to clean coal. This prep plant was constructed of steel members, 

concrete floors, concrete floor beams, and sheeting for siding. He believed the plant had 13 

levels. (Tr. 40). The primary focus of the examination was the sixth floor of the prep plant and 

McCort was accompanied by Floyd Campbell, a union representative, and Tim Drone who the 

inspector believes was the maintenance manager of the plant at the time. (Tr. 41). Mr. McCort 

went to the plant on March 6, 2009 in response to a 103(g) hazard complaint.5

 (Tr. 42). 

 The examination of columns on the sixth floor eventually focused on three columns and 

those columns were iron and steel. They were located in the second row and were identified by 

McCort as the second, fourth, and fifth columns from the plant control room on the creek side of 

the plant. (GX 3). (Tr. 43-46). In examining the columns, McCort used a hammer to clean off 

the columns and also to sound the columns.6

 In one particular instance the column was so thin 

that the hammer went through it. (Tr. 46). The examination of the three columns continued with 

the taking of measurements. With the exception of column five, anyplace that McCort saw 

noticeable thinning of the columns, he measured the thickest part of the column and the thinnest 

part of the column to determine how much structure was lost on the column. (Tr. 47). 

 5

 A 103(g) hazard complaint enables miners to make complaints on safety or health 

hazards when there are reasonable grounds to believe that a violation of the Act or a mandatory 

health or safety standard exists. This section of the Act creates a right to an immediate 

inspection by the Secretary. 30 U.S.C. §813(g)(1). In this case there were five complaints about 

conditions on the sixth floor. All five were investigated and four resulted in negative findings. 

One complaint resulted in a positive finding which noted that seven contractor employees were 

conducting repairs. (Tr. 109-111). The positive finding concerned three structural support 

columns located on the sixth floor of the prep plant which were determined to be not maintained 

in good repair. (Respondent Exhibit 11). 

6

 Sounding the columns is a way to tell if a column is solid or if it is thinning. 

36 FMSHRC Page 757
 On column 2 of row 2, McCort saw section loss on the flange at the top of the column as 

well as a lot of severe rust. Measurements were taken showing that the flange measured 3/8 of 

an inch at the bottom and 1/4 of an inch at the connection point. (Tr. 50-51). The quarter inch 

measurement was taken because it was visibly thinner and appeared to be the thinnest portion in 

that area. The 3/8 measurement was taken because it appeared to be the thickest part of the 

column. The amount of loss to the flange at the top of this column was approximately 30%. (Tr. 

52). 

 In the fourth column, McCort observed multiple spots that indicated flange thinning and 

web thinning. He also sounded this column with a hammer and could hear this difference 

indicating thinning. Again, McCort took measurements of the thickest and thinnest parts of this 

column. The thickest part measured 5/8 of an inch and the thinnest part 1/8 of an inch thick, 

which meant that the measured flange loss was half an inch. McCort also testified from his notes 

that column five showed significant structural loss in five places and severe structural loss on the 

hillside above the hub column. (Tr. 53-57). 

 On the fifth column of row two, McCort observed conditions similar to column four, but 

there were holes in the base of this column and exceedingly severe web and flange thinning. He 

observed a 1 1⁄2 inch hole and a 1⁄2 inch hole in the web. The measurement of 1/4 inch to 3/8 of 

an inch would be compared with the 5/8 of an inch thickness which McCort found upon his 

observation and recollection from earlier measurement. (Tr. 58-60). 

 If a flange is thinner that it originally was then it is coming out of design specs and 

indicates weakness in that column. (Tr. 61). Because water all over the sixth floor would have 

caused the deterioration of the steel columns following his examination of March 6, 2009, 

McCort issued an imminent danger order.7

 On the day of his inspection the third column of the row was under construction and 

being repaired. McCort noted that at the top of that repair that a hole in the webbing could be 

seen. That hole was 12-14 long and 2-3 inches wide. (Tr. 64). 

 Later that afternoon following completion of the examination of the sixth floor, McCort 

requested that an MSHA engineer evaluate the structure. Bob Newhouse, McCort’s supervisor, 

requested the engineer, Jarrod Durig. Durig, appeared and sounded columns, took 

measurements, and did other things with which McCort was not familiar. Durig concluded that 

he did not believe there was an imminent danger but that the columns did need repair. (Tr. 69-

70). 

 The hazards created by the condition of the prep plant, according to McCort, were that 

should the columns fail there would be falling material, falling miners, and multiple injuries, 

including fatalities. Also, in the event of column failure, the seventh floor could collapse on the 

sixth floor involving potential injuries to miners on the seventh floor. (Tr. 71). In explaining 

 7

 The order was based on his opinion and a few miners who said they had noticed 

excessive plant shaking and vibration not noticed before. (Tr. 62-65). 

36 FMSHRC Page 758
why column failure and partial plant collapse was reasonably likely, McCort opined that the 

specific columns cited were all in the same column line, on the same plane. (Tr. 74-75). 

 At the request of McCort, an MHSA engineer, Michael Marawski visited the plant in 

August, 2008, examined the plant and prepared a written report which was admitted as GX 26. 

Significant section loss was observed in the flanges on the upper column at the common splice 

connection in the column adjacent to cyclone A-58 – Repairs to the column splice at Cyclone A-5 

along with any other column splices on the sixth floor that were in a similar condition were 

recommended. (GX 26). McCort never saw the plans to repair the columns in the sixth floor, 

but the plans were explained to him by Tim Drone, maintenance manager of Emerald and 

McCort saw repair work being implemented. (Tr. 105-106). 

2. Testimony of Jarrod Durig 

 Mr. Durig is a supervisory civil engineer with the Pittsburgh Safety and Health 

Technology center, or MSHA technical support group, and is the chief of the geotechnical 

branch overseeing the work of seven other engineers. Included in the types of duties he performs 

are structural assessments of preparation plants. Mr. Durig has worked for MSHA from 1995-

2000 and from 2003 to the present. He has a bachelor’s degree in civil engineering from West 

Virginia University and a master’s degree in civil engineering from the University of Pittsburgh. 

He is licensed as a professional engineer in the Commonwealth of Pennsylvania. (Tr. 124-126). 

 Mr. Durig was called to the Emerald prep plant on March 6, 2009 to provide an 

assessment of conditions there and to make a recommendation regarding an imminent danger 

order. He was asked to look at three columns on the sixth floor and looked at a fourth column 

after inspecting the first three. They were designated columns 2B, 2C, and 2D. Durig later 

looked at 3D.9

 (see GX 5). 

 8

 This column is also referred to as the third column in the second row. (Tr. 85). 

9

 The column Durig designated as 2B is McCort’s No. 3, 2C is McCort’s No. 4, and 2D is 

McCort’s No. 5. (See Tr. 20 opening statement by counsel for the Secretary). However, this 

statement of explanation does not conform to the citation. The sixth floor of the prep plant was 

examined by a myriad of individuals who employed their own methods of identifying the 

columns which were the subjects of this citation. The inspector trainee for MSHA, Tom McCort, 

identified the columns as being in the second row from the raw coal side, and he numbered the 

columns as the second, third, fourth, and fifth columns from the creek side. (Tr. 45). The 

MSHA civil engineer, Jarrod During, identified the columns as 2B, 2C, and 2D. The columns 

cited in the citation are actually columns 2, 4, and 5 in McCort’s version. Yet another numbering 

system is employed by Emerald and identified as row H that which is McCort’s row 2, and listed 

the columns as 12H, 13H, and 14H. McCort’s column 2 is Durig’s 2B and Emerald’s 12H; 

McCort’s column 4 is Durig’s 2C and Emerald’s 13H; and McCort’s column 5 is Durig’s 2D and 

Emerald’s 14H as represented by counsel for the Secretary. (Tr. 269-270). There is a slight 

variation provided by counsel for Respondent. (see Amended Post-Hearing Brief at p. 3). 

36 FMSHRC Page 759
 In his examination of the columns, Durig performed a visual examination, used a 

chipping hammer for cleaning and sounding purposes, and used a tape measure to try to size the 

columns and also to measure the thickness of the flanges of the columns. After completing the 

evaluation he felt that the prep plant was not in imminent danger of collapse. (Tr. 135-136). 

Durig also felt that the prep plant was not in good repair based on the columns that he evaluated. 

(Tr. 136). Column 2D was in the process of repair. However, the area above the repair was in 

very poor shape due to substantial holes in the web along with thinning of the flanges in the same 

area. Durig would characterize column 2D as failed even with the repair work that was done. 

(Tr. 139-150). 

 Insofar as column 2B is concerned, Durig did not see any visible deformation but did 

recognize thinning of the flanges. He took measurements of that thinning to the bottom of the 

column. The flange thickness at 6 inches above the floor was between 3/8 of an inch and half an 

inch thick. Measurements were also taken of the column itself so that by consulting a steel 

design manual he could determine that the size of the column at the time it was constructed or at 

the time it was put in place. (Tr. 153). By consulting the manual (GX 13) Durig determined that 

Column 2B had over a 50% loss in thickness for the flange. (Tr. 161). Durig took four 

measurements and all fell within this range, except where those locations that measured 3/8 of 

inch would have indicated over 60% flange loss at that location. 

 Column 2C was also examined that day and found to be not in good repair due to the 

thinning of the flange and the condition of the bottom of the column. Again, by consulting 

manual and his measurements, Durig determined that the percentage loss in thickness of the 

flanges along the bottom of column 2C would be approaching 40%. (Tr. 164-166) 

RESPONDENT’S EVIDENCE 

1. Testimony of Ralph Layfield 

Mr. Layfield is an operational manager with Alpha Natural Resources and has been at 

Emerald for 14 years. Prior to Emerald, Layfield was employed for 22 years by Industrial 

Resources of Fairmont, West Virginia as a field manager and construction manager. His duties 

as a construction manager included the building of preparation cleaning plants, coal cleaning 

plants, rebuilding plants, and operations related with coal facilities. As such, he has 

approximately 35 years experience with preparation plants. (Tr. 222-223). 

 Mr. Layfield was part of the inspection party that eventually resulted in the issuance of 

citation No. 8007661. He does not remember seeing any holes in the structure or the beams that 

McCort was inspecting. He did not see any problems or issues with the structure. (Tr. 225-226). 

2. Testimony of Douglas Montgomery 

 Mr. Montgomery is employed at Emerald as a processing engineer and has been 

employed there since April 2003. Before that he worked at Cumberland Coal, Peabody Coal 

Company, American Electric Power, Southern Ohio Coal Company, U.S. Steel, and American 

Bridge. Over the years his various capacities have included being a foreman, engineer, plant 

36 FMSHRC Page 760
manager, construction estimator, design draftsman, and detail draftsman. Mr. Montgomery has a 

master’s degree in metal process engineering from West Virginia University, a bachelor’s degree 

in mining engineering from the University of Pittsburgh, and an associate’s degree in mechanical 

engineering from Penn State. (Tr. 230-232). 

 By the time of the inspections which resulted in this citation, Emerald was in the process 

of repairing columns on the sixth floor.10 Lincoln Contracting, whose field man was Mike 

Yoder, was working with Emerald. (Tr. 235-236). Several exhibits were offered and accepted to 

show that repairs were underway: RX-6 – materials used; RX-7 – Time sheets; RX-8 – invoice 

from Lincoln Contracting for work performed; RX-4 – Floor plan; RX-5 – time and materials 

invoice; summary of time sheets, and a change order; RX-9 – 2009 log book for completed 

repairs. 

3. Testimony of John Leach 

 John Leach is a project manager, estimator, and engineer for Lone Pine Construction, a 

construction company that does mine work. He holds a professional engineering license from 

the Commonwealth of Pennsylvania. On numerous occasions, Emerald Mine has called Lone 

Pine to do several projects, including prep plant renovations. Lone Pine investigates, prepares an 

estimate, submits a bid, and is sometimes awarded the job and sometimes not. (Tr. 270-273). 

Mr. Leach believed that this prep plant was one of the better cleaning facilities that he has seen. 

(Tr. 273). 

 On the day the citation was issued, Lone Pine was performing work at Emerald Mine and 

Mr. Leach was asked to evaluate three columns on the sixth floor of the pre plant, and to prepare 

a report. He did not believe that the structure was in any imminent danger of collapse. (Tr. 274-

279). Column 14H (2D) was under construction at the time Leach performed his examination. 

The repairs involved adding bent channel plates to form the inside of the flange as well as the 

web on both sides of the column and flange plates were added on the outside of the flange of the 

column. Mr. Leach believed that this was an exceptional way to repair that column and the load 

capacity of that column probably doubled or tripled by the way construction was performed. (Tr. 

281-283). 

 On March 6, 2009, Leach observed a quarter-sized hole in the center of the web on 

column 12H (2b) and that hole could have been put there for a purpose. While it was possible 

that the hole was there because it was a loss of thickness of the web, it was not likely. (Tr. 297-

298). 

4. Testimony of William Schifko 

 Mr. Schifko works for Emerald Mine, Alpha Resources and began in May or June of 

1978. He is currently the manager of compliance. This position involves educating employees 

 10 Through this witness we learned that a third means of identifying rows and columns 

was employed. Row H is McCort’s row 2. 

36 FMSHRC Page 761
about new laws and new regulations for compliance purposes and also education about safety 

and accident prevention. (Tr. 305). 

 Mr. Schifko does not believe there was a violation of 30 C.F.R. §77.200 because hitting 

the columns with a small sledge hammer did not produce any problems and there was no danger 

of an imminent collapse. Money is budgeted for maintenance and examination by the 

professionals. (Tr. 319-320). Mr. Schifko fundamentally disagreed with the degrees of gravity 

and negligence and thought there were considerable mitigating factors which should have 

affected MSHA’s degree of negligence. (Tr. 324). 

CONTENTIONS OF THE PARTIES 

1. The Secretary’s Contentions 

a. Due to the deteriorated columns on the sixth Floor, Emerald failed to maintain 

the prep plant in good repair and thus violated 30 C.F.R. §77.200 

b. In reaching this conclusion the inspector visually inspected the columns, did 

sounding tests with a hammer, and performed measurements with a tape 

measure to determine the extent of column, flange, and web thinning. 

c. Additional confirmation of thinning was provided by an MSHA engineer who 

contrasted the present condition of the columns with their original 

construction or installation. 

d. While there were repairs on the inspector’s third column, such repairs had not 

been completed and the column was not in good repair. 

e. The percentage of thinning indicates a column’s loss of ability to support its 

intended weight. 

f. The S&S designation was appropriate because the evidence established that 

the four core components of S&S had been met, particularly the reasonable 

likelihood of column collapse resulting in injuries of a reasonably serious 

nature, and Emerald did not adequately rebut the S&S allegation. 

g. The degree of negligence of Emerald was high with no mitigating 

circumstances. 

2. Respondent’s Contentions 

a. There was no violation of 30 C.F.R. §77.200 because there was no evidence 

of disrepair or that the condition presented a hazard. The conditions of the 

sixth floor of the plant were a result of normal wear of steel structures and 

posed no hazard. 

36 FMSHRC Page 762
b. Emerald was in the process of retrofitting columns on the sixth floor with one 

column having been retrofitted with other columns having been identified as 

needing attention, and professional contractors and engineers had been hired 

to design and complete the work. 

c. The inspector’s measurements of the three columns identified in the citation 

were unreliable. 

d. This case focuses on the conditions on the sixth floor. However, substantial 

amount of weight had been removed on the seventh floor directly above the 

area in question and the removed weight was approximately 1,180 tons, less 

than what had originally existed. Also, smaller columns were used from 

above the sixth floor because of reduced load. Thus the Secretary fails on the 

hazard arguments presented. 

e. The S&S designation is inappropriate as the evidence does not establish a 

hazard, or even meet the test of a reasonable likelihood of an event in which 

an injury could occur, and reasonable likelihood of injury should be made 

assuming continued mining operations. 

f. There is no evidence that Emerald was in any way negligent or aware that the 

condition of the columns on the sixth floor posed a hazard and substantial 

mitigating circumstances existed. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Validity 

 30 C.F.R. §77.200 requires all mine facilities to be maintained in good repair to prevent 

accidents and injuries to employees. The evidence in its totality requires a conclusion that the 

columns on the sixth floor were not being maintained in good repair. Measurements, soundings, 

and consultation with manuals all confirmed the visual observations of both Tom McCort, the 

inspector, and Jarrod Durig, a professional engineer, that significant thinning had taken place and 

in such percentages to indicate that the prep plant was not in good repair. 

 Documentary evidence also leads to that conclusion. For example, Respondent’s Exhibit 

11, a 103(g) hazard complaint, states that there were positive findings for the cited areas in that 

three structural support items were not being maintained in good repair. Also, GX 15, a report 

prepared by Durig, who was called to evaluate the efficacy of an imminent danger order, noted 

that the columns in question displayed extensive corrosion, delaminations, and section loss and 

recommended that they be retrofitted or replaced. The Secretary has established by a 

preponderance of the evidence that Respondent violated safety standard 30 C.F.R. §77.200. 

36 FMSHRC Page 763
2. Gravity and S&S Discussion 

 With respect to gravity, as noted above, the inspector felt that the risk of injury or illness 

for this violation was “reasonably likely,” “fatal,” and would have affected 10 persons. However, 

I credit the evidence presented by Respondent that showed that the possibility of injury from this 

condition was unlikely. Three engineers stated that there was no threat of immediate collapse 

and, further, that weight had been removed from the seventh floor, limiting the possibility of 

collapse.11 

 More importantly, the burden of proving the likelihood of injury was on the Secretary. I 

do not believe that the incomplete and contradictory evidence regarding the likelihood of 

collapse provided by the Secretary was sufficient to show that the risk of injury was anything 

more than “Unlikely.” For example, Durig testified that he believed that collapse would occur if 

2B, 2C, and 3D were allowed to deteriorate to the condition seen at the top of 2D. (Tr. 214). 

However, he did not testify that those three columns definitely, or even probably, would 

deteriorate in the same way as 2D. McCort testified that the cited conditions were reasonably 

likely to result in structural failure due to the fact that the specific columns cited were all in the 

same column line and the thinning and damage were all in the same plane of the column. (Tr. 

74). However, he also believed the columns were in imminent danger of collapse, a conclusion 

that was not only refuted by Respondent’s witnesses but also by Durig, the MSHA civil 

engineer. (Tr. 117, 135-136). Therefore, I believe that the gravity was more accurately described 

as possible but “Unlikely.” 

 However, given the serious danger posed by the collapse of a building, I find that if the 

unlikely event were to occur, the injuries could be fatal. 

 In order to establish S&S, the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 

FMSHRC 1, 3-4 (Jan. 1984). 

 With respect to the first factor, it has already been established that there was a violation 

of a mandatory safety standard. As noted above, Respondent failed to maintain the prep plant in 

good repair when it allowed three structural support columns to deteriorate. 

While the evidence presented by the two witnesses for the Secretary (inspector trainee 

McCort and civil engineer Durig) established the violation of the safety standard, the S&S 

requirement that the violation contributed to a hazard has been judged by me and found wanting. 

Therefore, the Secretary has failed to establish the second factor of Mathies. 

 11 Respondent also argued that it was in the process of retrofitting the conditions to 

prevent further deterioration. 

36 FMSHRC Page 764
The evidence presented by the Secretary does not show a realistic hazard existed at the 

time of the citation. Further, the evidence shows that no hazard would be contributed to in this 

case because, even before this citation was issued, Respondent had begun repairs on the 

columns. Respondent’s ability to present evidence in defense of the charge of S&S is not a new 

and novel development in Commission jurisprudence. For example, in Secretary v. 

Consolidation Coal Co., 5 FMSHRC 890, 899 (June 1986), the Commission held that, given the 

legislative history of the mine Act a presumption of S&S existed when excessive respirable dust 

exceeded the minimums established by 30 C.F.R. §70.100(a). However, the Commission further 

held that the presumption of S&S may be rebutted by the operator’s showing that miners were 

not exposed to the hazard of excessive dust through the use of personal protective equipment. In 

essence, the Commission held that even if there is a presumption of S&S, the details of the 

specific situation, including preventative measures taken, must be considered. In Consolidation 

Coal, the Commission found S&S was because the operator could not rebut the presumption. 

Here, however, exposure to a hazard was unlikely because Respondent had already taken 

preventative measure; specifically it had begun repairs of the cited columns. 

In U.S. Steel Mining Co., 7 FMSHRC 1135, 1130 (Aug. 1985) the Commission held that 

S&S must be resolved in terms of 1) the circumstances as they existed at the time the violation 

was cited and 2) as they might have existed had normal mining operations continued. Here, as 

has been shown, on the day Citation No. 8007661 was issued, repairs were underway on one 

column and planned for the others. Thus, it was not the citation that triggered the repairs and, at 

the time of the citations, Respondent was already eliminating the possibility of a future hazard. 

Therefore, the condition was unlikely to lead to any hazard. 

Even the hazard suggested by the Secretary shows that it was unlikely at the time of the 

citation. For example, Inspector McCourt couched his language regarding column failure and its 

effect on the seventh floor in terms, “could collapse on the sixth floor,” and in response to a 

question of “what might happen” if any of the columns failed the answer was, “it could

potentially be a domino effect.” (emphasis added) (Tr. 71). McCort did testify that it was 

reasonably likely that a portion of at least some of the columns would fail and a portion of the 

prep plan would collapse. (Tr. 74). It was clear that the dangers McCort discussed did not 

consider repairs already underway at the time of the citation. However, McCort was aware of 

these actions as he characterized the negligence as moderate (or the borderline of high) due to the 

implementation of a repair schedule and the fact that what he found was not plain to the eye. 

(Tr. 86-87). Further, in extending the original termination date, Investigator McCort noted that 

the “operator has a plan in place to repair all of the columns on the sixth floor and evidently has 

7 contractor employees conducting the repairs.” 

In a report submitted by civil engineer Durig dated April 30, 2009, and introduced and 

accepted as GX 15, Durig’s focus was to evaluate the imminent danger order which he vacated 

or terminated (he was not sure of the requirements of each). (Tr. 177). But his testimony is 

related to the S&S issue. In response to the court’s question of what could happen, Mr. Durig 

answered “...ultimately a structure failure,” and “there could be tripping, a fall hazard in the 

location.” (Tr. 208). Durig further testified that unless conditions were improved, unless a 

repair was done, it would collapse. And if columns 2B, 2C, and 3D had been allowed to 

deteriorate to the degree 2D had been allowed to deteriorate it was reasonably likely that over a 

36 FMSHRC Page 765
period of time there would have been some kind of failure. (Tr. 215). However, the reality here 

is that the cited columns had not been allowed to deteriorate in such a way and were in the 

process of repair even before the citations were written. Durig stated that “the retrofit that was 

witnessed on column 2D appeared to be adequate in restoring a sufficient amount of steel to 

transfer the applied loads through the Column.” (GX 15) 

As the Secretary has failed to establish that the condition contributed to a hazard given 

the repair work already in progress, I do not deem it necessary to consider the third or fourth 

Mathies factors. This citation was not S&S. 

3. Negligence 

Negligence “is conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 

100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or 

should have known of the violative condition or practice, but there are considerable mitigating 

circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of 

the violative condition or practice, but there are mitigating circumstances.” Id. High negligence 

exists when “[t]he operator knew or should have known of the violative condition or practice, 

and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 

(2011)(ALJ). Finally, an operator exhibits reckless disregard where it displays “conduct which 

exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). Mitigating 

circumstances may include, but are not limited to, actions taken by the operator to prevent or 

correct hazardous conditions or practices. Id. 

In this case, Respondent knew or should have known that it violated C.F.R. §77.200. 

Respondent was under a continuing obligation to examine working areas of the prep plant and 

should have seen the deteriorating columns. It could not have been particularly difficult to see 

that the columns had deteriorated to the point that a hammer could drive through the metal. 

Furthermore, on September 25, 2008, MSHA engineer Murawski issued a report that found 

serious structural problems with the columns and Emerald did not adequately correct the 

conditions before the inspection at issue here. Respondent suggest that this report did not place 

it on notice of the conditions because the report dealt with splice connections, not flange thinning 

or holes in webbing. I do not find that argument to be particularly compelling. The report 

indicated to Respondent that care and attention was needed for the supports on the sixth floor. 

 The Secretary claimed in his brief that there were no mitigating circumstances in this 

instance. However, this position is in direct contradiction to the Inspector’s testimony. The 

Secretary acknowledged that McCort found Respondent guilty of “between” moderate and high 

negligence, but stated the evidence suggested it was high. However, with respect to negligence, 

I found the Inspector’s testimony to be credible, including his testimony regarding mitigating 

circumstances. Specifically, McCort testified that Respondent had implemented a repair 

schedule and that the conditions were not apparent to the naked eye. As a result of these 

36 FMSHRC Page 766
mitigating circumstances, I cannot find high negligence. With that noted, I would not 

characterize these mitigating circumstances as “considerable.” Therefore, I find that Respondent 

exhibited Moderate Negligence. 

4. Penalty 

Under the assessment regulations described in 30 C.F.R. §100, the Secretary proposed a 

penalty of $8,209 for Citation No. 8007661. While the Secretary’s proposal was duly 

considered, under 30 U.S.C. §820(i), the power to assess a penalty is vested with the 

Commission. That law also dictates several factors be considered before an assessment is made. 

I will not evaluate each of those factors in turn with respect to penalty for Citation No. 8007661: 

a. The operator’s history of previous violations – Respondent was twice cited 

under Section 77.200 in the past two years. 

b. The appropriateness of the penalty compared to the size of the Operator’s 

business – Emerald Mine No. 1 produces 6,343,350 tons of coal annually and 

Respondent produces 69,624,256 tons of coal annually in all its operations. 

According to MSHA’s penalty assessment guidelines this gives Emerald Mine 

No. 1 15 “mine size points” out of a possible 15 and Respondent 10 

“controller size points” out of a possible 10. see 30 CFR § 100.3(b). Thus, 

Respondent is a very large operator with a very large mine. 

c. Whether the Operator was negligent – as previously shown, the operator 

exhibited moderate negligence. 

d. The effect on the Operator’s ability to remain in business – the parties have 

stipulated that the citations at issue here would not affect Respondent’s ability 

to remain in business. 

e. The gravity of the violation – as previously shown, this violation, given the 

repair work, is unlikely to cause injury, but if it did it could result in 

permanently disabling or even fatal injuries to ten persons. 

f. The demonstrated good-faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation – The evidence shows the 

condition was rapidly abated in good faith and this was so stipulated. 

 As I have decided to modify the gravity of this citation from “Reasonably Likely” and 

“S&S” to “Unlikely” and “Non-S&S,” I believe that it is necessary to also reduce the proposed 

penalty. Considering all of the factors listed above, Respondent is ordered to pay $5,000.00 with 

respect to this citation. 

36 FMSHRC Page 767
CITATION NO. 8006753 

 This 104(a) citation was issued on March 9, 2009 at 9:15 p.m. and was based upon the 

inspector’s observation of a violation of 30 C.F.R. §75.1714-7(a). This safety standard states: 

(a) Availability. A mine operator shall provide an MSHA-approved, handheld, 

multi-gas detector that can measure methane, oxygen, and carbon monoxide to 

each group of underground miners and to each person who works alone, such as 

pumpers, examiners, and outby miners. 

 In his narrative, the inspector found: 

The mine operator failed to provide an MSHA-approved, handheld, multi-gas 

detector that could measure methane, oxygen, and carbon monoxide to each group 

of underground miners and to each miner who works alone. Four miners were 

observed working in C-1 (032-0 MMU) number 2 entry, 184’ inby the longwall 

face without a multi-gas detector. The longwall was operating at the time of my 

inspection. 

(GX 19). The inspector noted that the risk of injury or illness for this violation was reasonably 

likely, the injury/illness could reasonably be expected to be fatal, the violation was significant 

and substantial, and it would affected four miners. Negligence was assessed as moderate. The 

proposed penalty for this citation was $3,143.00. 

 This citation was terminated on March 9, 2009 at 9:30 a.m. as a representative of the 

miners was provided with a multi-gas detector for this group of contractors. 

ISSUES 

Did Respondent violate 30 C.F.R. §75.1714-7(a) and, if so, were these violations 

significant and substantial? What was the degree of gravity and negligence? 

THE SECRETARY’S EVIDENCE 

1. Testimony of Charles Reidmann 

 Reidmann is an underground coal mine inspector employed by MSHA for the past seven 

years. (Tr. 351). He had over 30 years of experience in coal mining before joining MHSA. (Tr. 

351-354). 

 On the day citations were issued, Reidmann saw four miners working on the No. 2 Entry 

of the C-1 Longwall. Those miners were employed by High Tech, a contractor that conducted 

foreman work at Emerald Mine. (Tr. 359-360). Inspector Reidman spoke to the miners who 

were there to install pumpable supports. They were on the day shift, which began at 8 a.m. An 

MSHA-approved multi-gas detector was not provided. Inspector Reidmann was told that they 

usually have a person who traveled with them as an escort but no escort was provided that day. 

36 FMSHRC Page 768
(Tr. 360). When questioned, the miners were located at the No. 2 Entry inby the long wall face. 

A canvas check was up and the miners were in there about a block, 180 to 184 feet. (Tr. 361). 

 The hazard that the cited standard was intended to prevent was to protect miners in case 

of fire or to warn miners in the event of methane or low oxygen. (Tr. 361). A multi-gas detector 

protects miners who are in the presence of low oxygen, carbon monoxide, or methane. When 

within a certain range, a light will appear and an audible alarm will sound. (Tr. 361). The 

miners would know to come out of the area. Oxygen, carbon monoxide, and methane are 

odorless. Exposure to low oxygen and carbon monoxide results in the danger of loss of 

consciousness. The risk provided by the presence of methane is an explosive mix. (Tr. 361-

363). 

 The likelihood of a methane explosion in the mine could have been reasonably likely as 

Emerald No 1 mine is on a 5-day methane spot and liberates over a million cubic feet of methane 

in 24 hours. Emerald No. 1 is a gassy mine. Face to face ignitions have occurred before on the 

longwall. The miners would not have been safe in their location if there had been an explosion 

at the longwall face, where the methane ignition would have been. The methane ignition could 

also have been at the head gate. (Tr. 367-368). 

 Inspector Reidmann further testified in cross-examination that not everyone needs to 

wear a multi-gas detector. (Tr. 374). Anyone working alone would need a multi-gas detector, 

but the term “alone” is not defined. Reidmann was instructed in MSHA training that “alone” 

means “by yourself.”12 

 Production was occurring on the longwall face and 5 or 6 miners were on the longwall 

face. There was also a headgate operator who works on the headgate side where the curtain is 

located. Inspector Reidmann did not check with anyone to see how many had a multi-gas 

detector. (Tr. 381). 

 Respondent introduced, through Reidmann, Respondent’s Exhibit 22, which were the 

field notes Reidmann produced stating that the on the day of the inspection and citation the 

methane reading was 0, with 20.8% oxygen and that these were good readings. (Tr. 383). 

However, on re-direct examination, Reidmann testified that the presence of methane at the face 

or longwall can change in minutes. (Tr. 385). If a person on the longwall had a multi-gas 

detector that had alarmed, it could not have been heard by the four contract miners. (Tr. 394). 

RESPONDENT’S EVIDENCE 

1. Testimony of Gary Bochna 

 Gary Bochna is employed by Emerald Coal Resources as a senior safety representative 

and has held that position for 32 years. (Tr. 400). 

 12 The four miners here were working together, none was by himself or in any way 

“alone.” 

36 FMSHRC Page 769
 Bochna testified that he accompanied inspector Reidmann on an inspection the day 

Citation No. 8006753 was issued. The citation was served on Bochna. In the course of the 

inspection, Bochna observed four working contractors on the C1 section. More specifically, they 

were working inby the No. 2 Entry, about one block inby the longwall face. It takes a minute to 

walk one block. Production was occurring at that time and about 12 people were working on the 

longwall, and various people on that crew would have had a multi-gas detector. (Tr. 401-402). 

The four contractors came in with the crew and therefore the crew would have known that the 

contractors were there. (Tr. 402-403). Other miners were near the longwall face in the No. 2 

Entry. A headgate operator was in the No. 3 Entry on the face, about 2 blocks away. It would 

take about two minutes to walk two blocks. Various miners, including the headgate operator, 

mechanics, and the foreman would have a “gas meter.” (Tr. 403-404). 

 Bochna went to the area where the contractors were to check for ventilations and insofar 

as the readings were concerned he “did not think we had anything.” (Tr. 405). It is Emerald’s 

practice to send a miner with a multi-gas detector along with the contractors depending on where 

they are working. If they are away from a group of people they would have someone with a 

detector with the group and would not need one. (Tr. 410-411). But if there was a person on the 

longwall section with a multi-gas detector, the alarm would not be heard by, in this case, the four 

contractors. (Tr. 421). This is also true of the MGD that the headgate person used. (Tr. 422). 

2. Testimony of William Schifko 

 Schifko testified for Respondent with respect to Citation No. 8007661 as well. 

 Schifko decided to contest this citation due to confusion with regulations promulgated by 

MSHA and the portion of the regulations that caused confusion was the definition of “alone.” 

Schifko asked for compliance assistance from several people including MSHA field inspectors 

and from the District Office. (Tr. 434). Someone from MSHA referred to a series of questions 

and answers prepared by MSHA and specifically question No. 35, which is part of Respondent’s 

Exhibit 27. Schifko testified that the question stated, “Are several miners who work individually 

but are normally located within a maximum of five minutes walking distance from all the miners 

in this group are each required to have a multi gas detector?” And the answer provided is, “No, 

if it is practical and logical for these miners to quickly assemble prior to evacuation, only one gas 

detector to (sic) required for this group.” (Tr. 437). 

 Schifko further testified that that in a policy issued to all contractors, that he expected 

them to provide their own safety equipment including detectors. In the past, Emerald had lent 

detectors out to people and not gotten them back, which is expensive. (Tr. 438-439). There are a 

lot of occasions where miners do not have their detectors or have forgotten them and Emerald 

has allowed them to borrow the equipment. Schifko makes them sign for the equipment. (Tr. 

439). Loaner detectors were available. (Tr. 440). 

 The High Tech employees typically work at the long wall because that is the only place 

where pumpable cribs are built. Pre-shift organizational meetings are held where assignments 

are given and everyone is told where to go. The Emerald “responsible person” knows where 

everybody is going to go. (Tr. 440-441). 

36 FMSHRC Page 770
 Insofar as a potential ignition on the longwall face is concerned, Schifko testified that 

they had never had any ignition in the C Block. Further, whether or not there was an ignition 

would not be influenced based on whether the contractors had detectors. 

 Schifko disagreed with the testimony attributed to inspector Reidmann that if you cannot 

see or hear somebody else, that someone was alone. Although he does not believe that Inspector 

Reidmann was given a lot of guidance from MSHA. (Tr. 445). There is no question in 

Schifko’s mind that someone with a multi-gas detector was within 900-1000 feet and therefore 

within five minute walking distance. (Tr. 447-448). Furthermore, it is Schifko’s testimony that 

the four contractors were in the same group as the people working on the longwall. (Tr. 450). 

SECRETARY’S ADDITIONAL EVIDENCE 

1. Testimony of Robert Newhouse 

 Following Respondent’s Final witness, the Secretary moved to re-open the record, which 

motion was granted and the Secretary then presented witness Robert Newhouse. 

 Newhouse is employed by MSHA as the supervisory coal mine inspector for the Ruff 

Creek Field Office and has been as supervisor since 1985. He has been an inspector of 

underground coal mines since 1977. (Tr. 501). Newhouse was designated as the Secretary’s 

Representative and sat at counsel table for all proceedings. 

 Newhouse testified that he read all of the questions and answers regarding multi-gas 

detectors in RX 27 and had been involved in the issuance and development of the standard. He 

was familiar with the standards, why they were enacted, and their purpose. In his opinion, the 

question about distance and a five minute walk is irrelevant. The key is air pressure. A group of 

miners or an individual miner walking in an area that can have bad air, is being inundated with 

smoke, needs to be protected with a detector. (Tr. 502-503). 

 Newhouse testified that due to the check curtain the intake air was split, creating different 

areas where the air pressure was different. In the longwall mining area, the rock fell back across 

the shields as mining occurred and normal roof falls occur. The rock displaces air in that area 

forcing the air to come out through the entries as it has to go somewhere. Thus, there is a 

buildup of pressure in the areas where there is no fall, creating a void, or a potential void. That 

void has methane, low oxygen, dust, and other “things” in it. The four contractors and the other 

people in the mine would not necessarily know. They would know if a roof fall occurred, but 

their air would not change. That is why they have a union person with a detector normally 

assigned to the contractors who are inexperienced. (Tr. 503-505). 

 

36 FMSHRC Page 771
CONTENTIONS OF THE PARTIES 

1. The Secretary’s Contentions 

 The four contract miners working underground were a group and Respondent was 

therefore obligated to provide a multi-gas detector to the group. 

2. Respondent’s Contentions 

 The four contractor miners working underground were not a group, but were instead part 

of a larger group that was equipped with a multi-gas detector. The fact that the contract miners 

were within a five minute walk from Respondent’s miners satisfies MSHA’s question and 

answer publication which clarifies the requirements of 30 C.F.R. §75.1714-7(a). 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Validity 

 Respondent was cited because the inspector found four contractors working together in 

the mine without a multi-gas detector. Furthermore, there were other miners within a five 

minute walk of the four contractors, though not working directly with them, who had multi-gas 

detectors. These facts are not in contest. The cited standard, 30 C.F.R. §75.1714-7(a) requires 

all individual miners or groups to have a working multi-gas detector. Therefore, the primary 

issue with respect to this violation is whether the four contractors were members of a discrete 

“group” that were not supplied with a multi-gas detector or were part of a larger “group” that 

included miners who had the required multi-gas detector. To a large extent, this topic boils down 

to the definition of the word “group.” 

 Under well-settled Commission precedent, where the language is clear, the terms of that 

provision must be enforced as they are written, unless the regulator clearly intended the words to 

have a difference meaning or unless such a meaning would leave to absurd results. Sedgman, 28 

FMSHRC 322, 329 (June 2006); and Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006). 

In the absence of a statutory definition or a technical usage of a term, the Commission applies its 

ordinary meaning. Id. 

 Here, the term “group” is not given a statutory definition. The Merriam-Webster 

dictionary defines a group as, “two or more figures forming a complete unit in a composition” 

and “a number of individuals assembled together or having some unifying relationship.” 

Merriam-Webster Dictionary (11th Ed. 2003). In the context of the standard, there is no real 

question as to the meaning of the term. “Group” in the context of §75.1714-7(a) cannot mean 

anything other than two or more workers acting together as a unit, in a discrete area, with 

knowledge that they are members of a group. In this situation, the four contractors functioned as 

a discrete and separate unit. They acted together to perform foreman work. There is no other 

way to describe the four contractors as anything other than a “group.” At the same time, it would 

be absurd to consider other employees, even those employees working nearby, to be considered a 

part of their “group.” There is no evidence in the record that they interacted with Respondent’s 

36 FMSHRC Page 772
direct employees on the Longwall or in any way coordinated their work. The plain meaning of 

the word “group” will not support such a contention. 

Beyond the plain meaning of the word group, considering the four contractors as part of 

the longwall group would have a negative effect on the safety of miners. The Commission has 

interpreted that the plain meaning of a term along with the overall purpose of the Act. Local 

union No. 5817, District 17, United Mine Workers of America v. Monument Mining Corp. and 

Island Creek Coal Company, 9 FMSHRC 209, 211-212 (Feb. 1987); see also 30 U.S.C.A. § 

801(a) (“the first priority and concern of all in the coal or other mining industry must be the 

health and safety of its most precious resource--the miner.”) I credit the testimony of Inspector 

Reidmann that the contractors would not have heard the multi-gas detector alarm on the 

longwall. Furthermore, I credit Newhouse’s testimony that the contractors and the miners on the 

longwall were breathing different air, meaning that even if the longwall miners’ multi-gas 

detector did not go off, the contractors could be experiencing dangerous atmosphere. An 

understanding that miners breathing different air and outside of the range of the alarm are part of 

the same “group” as the longwall miners would place a technical reading of the term “group” 

over the Act’s primary goal of miner safety. 

As I have decided to apply the plain meaning of the term “group,” there is no need to 

consider the level of deference accorded to the Secretary in this instance. Furthermore, there is 

no need to discuss whether Respondent had “fair notice” of the interpretation because the 

meaning of the standard was clear.13

13 Respondent presented several arguments to support its claim that the Secretary’s 

interpretation was not entitled to deference. Specifically, it claimed that the Secretary was 

inconsistent in his interpretation, that its current interpretation is a post-hoc rationalization, and 

that the interpretation would be absurd. However, it is only when the meaning is ambiguous that 

the judge is to consider the reasonableness of the Secretary’s interpretation. 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)); Exportal LTDA v. 

United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“‘Deference ... is not in order if the rule's 

meaning is clear on its face.”’) (quoting Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 

1984); see also Jim Walter Res., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., 19 

FMSHRC 1761, 1765 (Nov. 1997); Cannelton Indus., 26 FMSHRC 146, 151 (Mar. 2004). As I 

found that the meaning of the word “group” in the context of the standard was not ambiguous, 

there is not need to consider the deference accorded to the Secretary. 

However, even if this definition of “group” simply were the Secretary’s interpretation, I 

do not believe Respondent’s arguments attacking the reasonableness of that definition are 

compelling. For example, Respondent’s argument relies on the 2007 Emergency Mine 

Evacuation Final Rule Questions and Answers. That document included a question asking if 

individual miners working within a five minute walking distance were each required to carry a 

detector. The answer said, “No, if it is practical and logical for these miners to quickly assemble 

(continued...) 

36 FMSHRC Page 773
2. Gravity and S&S Discussion

With respect to the gravity of this citation, I credit the testimony of Inspector Reidmann. 

He presented evidence that if the four contractors encountered dangerous conditions; they would 

be unaware of the danger. As a result, those miners could have been trapped in an area with low 

oxygen and/or carbon monoxide and loss of consciousness or even been injured by a methane 

explosion. The possibility of low oxygen or carbon monoxide is a real danger in a coal mine. 

13(continued...) 

prior to evacuation, only one multi-gas detector is required for this group.” Respondent 

argues that it this means the four miners were part of the longwall group. However, Respondent 

ignores the fact that individual miners are only considered part of a group if, “it is practical and 

logical for these miners to assemble quickly prior to evacuation.” As already shown, the 

Secretary’s witnesses credibly testified that the contractors would not have heard the alarm. 

Therefore, it would not have been practical for those contractors to quickly assemble in order to 

evacuate. Instead, miners on the longwall that heard the alarm would have had to immediately 

act as a rescue crew and go searching for the contractors rather than themselves safely 

assembling for evacuation. Further, as those miners were in different air, there was no practical 

way for the contractors to know if they were experiencing dangerous atmosphere and were in 

need of evacuation. 

In a related argument, Respondent contends that the Secretary’s interpretation of the term 

“group” has been inconsistent in light of the above “answer” and that its use of the interpretation 

urged at hearing was a post-hoc rationalization. However, as shown above, the Secretary’s 

position at hearing, as well as the 2007 Question and Answer, are consistent with the language of 

the standard and with one another. If anything, it appears that the Respondent is the party 

engaging in post-hoc rationalization of its position. The evidence clearly showed that at all other 

times, Respondent provided an escort with a multi-gas detector to the contractors. (Tr. 360, 410-

411). It was only when they were cited in this particular instance that it argued that these miners 

were part of a larger group. 

Finally, Respondent argues that the Secretary’s interpretation is absurd because it would 

be unclear whether a group is determined by “minimum distance” or “common task.” It noted 

that miners working on separate tasks but “within arms reach” might not be considered a group 

and require a separate multi-gas detectors. I do not believe there is any uncertainty. The issue is 

not whether “minimum distance” or “common task” denotes a group; those are two equal aspects 

of the definition of “group.” Miners at a distance from other miners are not part of the same 

“group” for the reasons discussed already, namely different air courses and inability to hear an 

alarm. At the same time, miners working on a different task, even if close by, are not part of a 

“group” because, as they are not part of a unit working together, they may leave the area without 

being noticed or accounted for at any time. In essence, miners working in a group share a known 

responsibility towards a particular task and also for one another. A miner outside of that shared 

task could easily be left outside of the group’s sense of reasonability as well. That is why a 

worker conducting an unrelated task, even if close, might be considered outside of a “group.” 

There is nothing absurd about that result. 

36 FMSHRC Page 774
Furthermore, this was a gassy mine on a five-day spot with a history of face ignitions, making a 

face ignition possible. (Tr. 367-368). As a result, I agree with the Secretary’s findings that this 

hazard was reasonably likely and possibly fatal. 

 As stated previously, in order to establish S&S, the Secretary must prove: (1) the 

underlying violation of a mandatory safety standard; (2) a discrete safety hazard contributed to 

by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC at 3-4. 

 As shown above, there was an underlying violation of the mandatory safety standard. 

 With respect to the second factor, Respondent argues that the failure to provide the 

contractors with a multi-gas detector did not contribute to a safety hazard because the contractors 

were not engaged in an activity that risked ignition.14 (Respondent’s Post-Hearing Brief at 48-

49). It may be true that the contractors were note engaged in an activity that risked ignition but 

that does not change the fact that they were near the face where mining activity was taking place. 

In the event of an inundation of methane, those contractors would have no warning. Further, in 

order to be S&S, a violation need not be shown to cause a hazard, it need only contribute to a 

hazard. The fact that the miners did not have a multi-gas detector would contribute to the hazard 

of explosion in someway, regardless of the possible causes of ignition. Finally, methane ignition 

is not the only hazard possible. The miners could enter an area with carbon monoxide or low 

oxygen and lose consciousness, regardless of the presence of explosive gases. 

 Respondent also argues that, in the event of an incident, the contractors would have been 

among the first warned of danger because of their location. This would only be true if the 

contractors happened to be in a location where they could be easily warned. There is no 

evidence to suggest that evacuating miners would definitely come in contact with the contractors. 

Even if they would, that protection would only help those contractors if they were in the same 

atmosphere as the miners with multi-gas detectors. If the contractors were in an area with 

methane, low oxygen, or carbon dioxide while the other miners were not, there would be no 

warning. Therefore, the failure to provide multi-gas detectors to the miners contributed to the 

hazard of exposure to explosion or to asphyxiation. 

 With respect to the third and fourth factors of Mathies, There is no question that an 

explosion or asphyxiation would cause an injury to the contractors. Furthermore, such an injury 

would be serious, perhaps even deadly. As a result, I hold that this violation was S&S. 

 14 Respondent also argues that there was no danger of ignition because there was no 

methane was present. (Respondent’s Post-Hearing Brief at 48). However, as Respondent is 

apparently aware based on other arguments in the brief, as an emergency standard, an event is 

assumed when considered the S&S nature of the violation. Cumberland Coal Resources, LP, 33 

FMSHRC 2537 (Oct. 2011). 

36 FMSHRC Page 775
3. Negligence 

 Respondent knew or should have known that the contractors should have been provided 

with a multi-gas detector. In fact, the Secretary presented evidence that Respondent had always 

sent the contractors with an escort in the past equipped with a multi-gas detector. (Tr. 360, 410-

411). This shows that Respondent was aware that these miners were a “group” and that they 

were required to provide a multi-gas detector for them. I credit Reidmann’s testimony that 

Respondent’s actions were only moderately negligent because they had attempted to comply 

with the standard in the past. (Tr. 370-372). 

4. Penalty 

 Under the assessment regulations described in 30 C.F.R. §100, the Secretary proposed a 

penalty of $3,143.00 for Citation No. 8006753. While the Secretary’s proposal was duly 

considered, under 30 U.S.C. §820(i), the power to assess a penalty is vested with the 

Commission. That law also dictates several factors be considered before an assessment is made. 

I will not evaluate each of those factors in turn with respect to penalty for Citation No. 8006753: 

a. The operator’s history of previous violations – Respondent was cited four 

times under Section 75.1714-7(a) in the past two years. 

b. The appropriateness of the penalty compared to the size of the Operator’s 

business – Emerald Mine No. 1 produces 6,343,350 tons of coal annually and 

Respondent produces 69,624,256 tons of coal annually in all its operations. 

According to MSHA’s penalty assessment guidelines this gives Emerald Mine 

No. 1 15 “mine size points” out of a possible 15 and Respondent 10 

“controller size points” out of a possible 10. See 30 CFR § 100.3(b). Thus, 

Respondent is a very large operator with a very large mine. 

c. Whether the Operator was negligent – as previously shown, the operator 

exhibited moderate negligence. 

d. The effect on the Operator’s ability to remain in business – the parties have 

stipulated that the citations at issue here would not affect Respondent’s ability 

to remain in business. 

e. The gravity of the violation – as previously shown, this violation was 

reasonably likely to cause injury, or illness that could reasonably be expected 

to be fatal. 

f. The demonstrated good-faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation – The evidence shows the 

condition was rapidly abated in good faith. 

36 FMSHRC Page 776
 I AFFIRM Citation No. 8006753 as issued as well as the Secretary’s proposed penalty 

assessment of $3,143.00. 

ORDER

Respondent, Emerald Coal Resources, LP, is hereby ORDERED to pay the Secretary of 

Labor the sum of $8,143.00 within 30 days of the date of this decision.15 

 /s/ William S. Steele 

William S. Steele 

 Administrative Law Judge 

Distribution: 

 

Patrick W. Dennison, Esq., & Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway 

Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222 

Pamela Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 

800, Denver, Co 80201

 15 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

36 FMSHRC Page 777
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

303-844-3577 FAX 303-844-5268 

March 27, 2014 

 

DECISION

Appearances: Nadia A. Hafeez, Esq., and Matthew M. Linton, Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for Petitioner; 

Author M. Wolfson, Esq., and Page Jackson, Esq., Jackson Kelly, PLLC, 

Pittsburgh, Pennsylvania, and Denver, Colorado, for Respondent. 

Before: Judge Manning 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Black Beauty Coal Company, owned by Peabody Midwest Mining, LLC (“Peabody”) 

pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§§ 815 and 820 (the “Mine Act”). The parties introduced testimony and documentary evidence 

at a hearing held in Evansville, Indiana, and filed post-hearing briefs. 

Peabody operated the Air Quality #1 Mine in Knox County, Indiana. A total of three 

section 104(a) citations and four 104(d)(2) orders of withdrawal were adjudicated at the hearing. 

Two orders and 49 citations settled in these dockets. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation No. 8421043; LAKE 2010-106

On August 28, 2009, Inspector Philip Douglas Herndon issued Citation No. 8421043 

under section 104(a) of the Mine Act, alleging a violation of section 75.1403-5(g) of the 

Secretary’s safety standards. (Ex. G-3). The citation stated that the walkway around the Main 

South slope tail was not being maintained because the walkway was covered in a layer of mud 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

BLACK BEAUTY COAL COMPANY, 

 Respondent

: 

: 

: 

: 

: 

: 

: 

: 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2010-39 

A.C. No. 12-02010-197503-01 

Docket No. LAKE 2010-106 

A.C. No. 12-02010-200613-03 

Air Quality #1 Mine

36 FMSHRC Page 778
that was about 1 foot deep, 5 feet wide, and 9 feet long. The citation stated that the muddy 

conditions made travel around the tail slick and hazardous. Inspector Herndon determined that 

an injury was reasonably likely to occur and that such an injury could reasonably be expected to 

result in lost workdays or restricted duty. Further, he determined that the violation was 

significant and substantial (“S&S”), the operator’s negligence was high, and that one person 

would be affected. Section 75.1403-5(g), which is a safeguard criterion, states that “a clear 

travelway at least 24 inches wide should be provided on both sides of all belt conveyors installed 

after March 30, 1970.” 30 C.F.R. § 75.1403-5(g). The Secretary proposed a penalty of 

$3,689.00 for this citation. 

Background

 Inspector Herndon testified that the mud he encountered made the travelway slick and 

created a hazard to miners traveling in the area. (Tr. 30-31). He determined that the conditions 

violated Safeguard Notice No. 7591942. The conditions made it reasonably likely that a miner 

traveling in the area would slip, fall, and come into contact with sharp objects in the area such as 

the belt structure or the tailpiece. (Tr. 21-32). He concluded that any injuries would likely result 

in lost workdays or restricted duty. He determined that Peabody’s negligence was high because 

mine examiners were required to walk through the area to conduct examinations. (Tr. 33). 

Peabody previously received citations for muddy conditions in the same location. (Tr. 33-35). 

Indeed, the inspector testified that he previously fell in the cited area as a result of muddy 

conditions. Id.

Safeguard Notice No. 7591942 was issued on May 7, 2003, and was modified on August 

9, 2007. (Ex. G-1). The safeguard was issued because rib coal and rib rock fell into the 

travelway along each side of the 2-A conveyor belt at crosscut 17. The safeguard notice required 

Peabody to maintain a 24 inch travelway on both sides of all belt conveyors. The safeguard 

notice was modified in August 2007 to include a requirement that “the 24 inch travelway shall be 

clear of mud and water.” Id. 

Discussion and Analysis

Peabody maintains that this safeguard notice, as modified, is invalid and should be 

vacated. I previously held that Safeguard Notice No. 7591942 is valid and enforceable as 

modified. Black Beauty Coal Co., 36 FMSHRC ____, slip op. at 23, No. LAKE 2009-414 

(March 10, 2014).1

 For the reasons set forth in that decision, I affirm my holding that the 

safeguard notice was validly issued and modified. 

Inspector Herndon testified that he observed mud on the right side of the tail that 

presented a slipping hazard. (Tr. 31). He did not measure the muddy area, he simply estimated 

the dimensions. (Tr. 42). At the hearing, the inspector did not testify about the width of the 

travelway or how much of the travelway’s width was compromised by mud and water. 

 1

 Commission Judge Miller also determined that this safeguard notice was valid including 

the modification. Black Beauty Coal Co., 33 FMSHRC 1504, 1517-18 (June 2011) (ALJ). 

 

36 FMSHRC Page 779
Randall Hammond was Peabody’s escort during Inspector Herndon’s inspection of the 

mine on August 28, 2009. He testified that the citation was issued at the tail of the Main South 

Slope belt, which is a transfer point between the Main South Belt and the Main South Slope belt. 

(Tr. 48). The area is often wet because water is applied to the belts, scrapers wipe water from the 

bottom belts, and the area is frequently washed to clean up accumulations. Peabody constructed 

a 24 inch wide wooden bridge on the left side of the tail area parallel to the transfer point. (Tr. 

48-49; Ex. R-2, R-3). Peabody also placed wooden pallets at the cross-under point of the Main 

South belt to create a walkway. Id. Hammond testified that the travelway on the right side of the 

tail structure was 10 feet wide and there was room for safe passage despite the presence of mud 

and water. (Tr. 51, 57). He said that he walked through the area during the inspection without 

stepping in mud or water. He took measurements in the area. At least 5 feet of the 10 foot 

travelway was clear of mud and water. (Tr. 52, 58). 

Peabody maintains that Citation No. 89421043 should be vacated because the Secretary 

did not establish a violation of the safeguard. Peabody does not dispute that there was mud on 

the right side of the tail, but argues that the presence of mud does not establish a violation 

because the safeguard notice requires that a “24-inch travelway shall be clear of mud and water.” 

(Ex. G-1 at 3). Hammond testified the muddy area was near the corner of the tail so that there 

was at least a clear 24-inch wide walkway provided between the muddy area and the rib. (Tr. 53; 

Exs. R-2, R-3). Consequently, the Secretary failed to prove a violation. 

I credit the testimony of Hammond as to the measurements that he took. I also note that 

Inspector Herndon did not compare the width of the subject travelway to the width of the wet 

and muddy area to see if 24 inches of clearance was provided.2

 The presence of mud in a 

travelway does not establish a violation of the safeguard notice unless there is not a clear 24-inch 

path along the travelway. The Secretary bears the burden to establish a violation of a safeguard 

notice. Cyprus Cumberland Resources Corp., 19 FMSHRC 1781, 1785-86 (Nov. 1997). The 

Secretary assumed that the presence of mud in the travelway established a violation due to the 

hazards presented. Although the Secretary’s authority to issue safeguards is broad, the language 

of a safeguard must be construed narrowly. Cyprus Cumberland, 19 FMSHRC at 1785; 

Southern Ohio Coal Co., 7 FMSHRC 590, 512 (April 1985). 

Citation No. 8421043 is therefore VACATED. 

B. Order No. 8421014; LAKE 2010-39

On August 5, 2009, Inspector Herndon issued Order No. 8421014 under section 

104(d)(2) of the Mine Act, alleging a violation of section 75.400 of the Secretary’s safety 

standards. (Ex. G-6). The order states, in part, that the Main South Slope Belt was operating 

 2

 Both Inspector Herndon and Hammond are experienced miners. The inspector had 

about 27 years of coal mining experience including 3 years as an MSHA inspector. (Tr. 27). 

Hammond also had about 27 years of coal mining experience including several years as director 

of the Indiana Bureau of Mines. (Tr. 47). 

36 FMSHRC Page 780
while in contact with an accumulation of coal fines that was 6 feet wide and 10 feet long. The 

coal fines were black in color and dry. The inspector alleged that the accumulations should have 

been obvious to the “most casual of observers.” Id.

Inspector Herndon determined that an injury was reasonably likely to occur and that such 

an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he 

determined that the violation was S&S, the operator’s negligence was high, and that three people 

would be affected. Section 75.400 states that “coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings . . . .” 30 C.F.R. § 75.400. The Secretary proposed a 

penalty of $15,971.00 for this order. 

 

Background

This order was issued in the same area as Citation No. 8421043, discussed above. At this 

location the Main South belt dumped coal onto the Main South slope belt, which transported coal 

out of the mine.3

 Inspector Herndon observed that the Main South slope tail was running and the 

belt was contacting an accumulation of coal fines. (Tr. 61). The accumulation was about 18 

inches deep. (Tr. 65-66). The guard around the tail was packed with accumulations so that when 

the guard was removed, about three feet of fines were released. (Tr. 66). Inspector Herndon 

determined that the coal fines took a significant amount of time to accumulate in the area. He 

was especially concerned because the coal fines were compacted and conformed to the shape of 

the belt. (Tr. 67; Ex. G-6). The fines were dry where the rollers contacted them. (Tr. 63, 89). 

Timothy Thompson, a safety technician for Peabody, accompanied Inspector Herndon on 

August 5, 2009. He testified that the area cited by the inspector was wet. (Tr. 93). The slope 

belt tail was installed upon a concrete pad and water tended to accumulate in the area because it 

was in a low lying area. (Tr. 94). Thompson testified that there is water is on the South Slope 

belt and water sprays were directed at the head roller on the Main South Belt. (Tr. 95). This 

water tends to drip down toward the tail piece of the South Slope belt. (Tr. 96; Ex. G-7 at 11). 

There were also CO sensors inby the location of the tail for the South Slope belt that notify the 

control center on the surface in the event of an increase in carbon monoxide levels. (Tr. 97-98). 

The Secretary argues that the violation was S&S because the evidence establishes that the 

moving belt and turning rollers contacted dry coal fines. (Sec’y Br. 17; Tr. 63, 73, 75). The 

discrete safety hazards created were the inhalation of smoke and burns suffered by miners 

fighting a fire. It was reasonably likely that a fire would start and seriously injure a miner in the 

area. 

The Secretary also maintains that the inspector’s unwarrantable failure determination is 

supported by the evidence. The inspector determined that Peabody knew about the condition for 

five production shifts because it was recorded in the belt books that long. (Ex. G-8). Peabody 

 3

 At the time of the hearing, Peabody was no longer using the South Slope and the Main 

South belts. It had consolidated its operations to the west side of the mine. 

36 FMSHRC Page 781
was also warned about accumulations in this area many times. The operator was deliberately 

ignoring the problem. 

Peabody, on the other hand, contends that the violation was not S&S because a 

confluence of factors that would make a fire reasonably likely was not present. The material 

cited was wet and much of it was made up of noncombustible material. The evidence establishes 

that the area was consistently wet and, assuming continued normal mining operations, it would 

have remained wet. (Peabody Br. 17; Tr. 73, 93). In addition, three miners were shoveling in the 

area so it can be inferred that the condition would have been cleaned up in a short period of time. 

It was not reasonable likely that a fire would start or that anyone would be seriously injured if the 

material began to smolder. 

Peabody also maintains that the Secretary did not establish that the violation was the 

result of its unwarrantable failure to comply with the safety standard. The evidence shows that 

the accumulation was not extensive; it would not have been present for a long period of time; 

and it did not pose a high degree of danger. Peabody was in the process of removing the 

accumulation and it was not on notice that additional efforts were needed to remove 

accumulations at the mine. 

Discussion and Analysis

I find that the violation was serious but the Secretary did not establish that the violation 

was S&S.4

 I find that it was unlikely, taking into consideration continuing mining operations, 

that the cited condition would have ignited or created a fire. I reach this conclusion for several 

reasons. First, I find that the evidence establishes that the material in the area was wet and much 

of it was incombustible mud and rock. Although I credit the inspector’s testimony that the 

material that contacted the belt was dry, the remaining material was too wet to burn and would 

not have dried out quickly. It was not reasonably likely to ignite. Second, it was not reasonably 

likely that anyone would suffer smoke inhalation or burns because it was unlikely that the 

condition would have led to an event in which significant smoke was produced. Although there 

was a remote possibility that some smoldering would have occurred in the event the 

accumulations were not removed, the evidence establishes that it would have been localized and 

 4

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). A violation is properly designated S&S “if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must 

prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – 

that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the 

injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); 

accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 

F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). 

36 FMSHRC Page 782
the mine’s firefighting team would not have been exposed to the hazards of burns or smoke 

inhalation. Third, Peabody’s Belt & Roadway Inspection Reports (the “Inspection Reports”) 

establish that during many shifts when the examiner discovered accumulations in the cited area, 

actions were taken to remove them. During the shifts immediately preceding the inspection, 

Inspection Reports note that there were mud and fines at the tail and that either work was in 

progress to remove the mud and fines or that the area was washed down. (Ex. G-8). Peabody 

did not ignore the accumulations. Miners were shoveling accumulations in the area at the time 

of the inspection. There was no methane present; other sources for an ignition were not present; 

and the area was a long distance from working sections of the mine. The gravity was serious. 

 I also find that the Secretary did not establish that the violation was the result of 

Peabody’s unwarrantable failure to comply with the safety standard.5

 Peabody was negligent 

with respect to this violation but its negligence did not rise to the level of aggravated conduct. 

The violation was obvious because Peabody knew that it was common for coal fines, muck, and 

mud to accumulate at the bottom of the South Slope belt. The area was consistently wet, 

however, and was frequently cleaned. Although accumulations had been present for several 

shifts, the area was cleaned regularly and miners were shoveling in the area. It is not clear how 

long the particular accumulation discovered by the inspector was present. Peabody, through its 

examiners, knew that material frequently accumulated around the tail of the South Slope belt. 

The condition did not pose a high degree of danger as discussed above. The accumulation was 

mostly wet and included mud and muck. Peabody was aware that MSHA issued many citations 

for accumulations along belt lines over the previous few years. (Ex. G-26). MSHA instituted a 

belt initiative following the fire at Aracoma Coal Company’s Alma Mine belt fire. MSHA 

routinely warned mine operators, including Peabody, to do a better job of keeping their belts 

clean. 

In a previous case, I came to the same conclusion with respect to two accumulation 

violations issued in February 2009 near the tail of the South Slope belt and along the outby end 

of the Main South belt. Black Beauty Coal Co., 36 FMSHRC _____, slip op. at 12-18, No. 

LAKE 2009-413 (Mar. 10, 2014). I determined that Peabody violated section 75.400 and that 

the violations were serious but were not S&S or the result of an unwarrantable failure. My 

reasoning in this case parallels my reasoning with respect to those violations. 

 5

 Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 

FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir. 

1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is 

determined by looking at all the facts and circumstances of each case to see if any aggravating 

factors exist, such as the length of time that the violation has existed, the extent of the violative 

condition, whether the operator has been placed on notice that greater efforts are necessary for 

compliance, the operator’s efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the 

violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar 

violations are relevant to an unwarrantable failure determination to the extent that they serve to 

put an operator on notice that greater efforts are necessary for compliance with a standard. 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

36 FMSHRC Page 783
Order No. 8421014 is MODIFIED to a section 104(a) non-S&S citation with moderate 

negligence. The violation was serious. A penalty of $12,000.00 is appropriate for the present 

violation. 

C. Order No. 8420824; LAKE 2010-39

On August 5, 2009, Inspector Anthony DiLorenzo issued Order No. 8420824 under 

section 104(d)(2) of the Mine Act, alleging a violation of section 75.363(a) of the Secretary’s 

safety standards. (Ex. G-10). The order states that the conditions described in Citation No. 

8420822 existed since July 28, 2009, and no apparent effort was made to correct the conditions. 

The order states that the conditions described in the citation were extensive, obvious, existed for 

a significant length of time, and were included in the Inspection Records since July 28, 2009. 

The underlying section 75.400 violation described in the citation occurred along the 5 C belt and 

consisted of an accumulation of combustible material from crosscut 0 to crosscut 13. 6

Inspector DiLorenzo determined that an injury was unlikely, but that any injury could 

reasonably be expected to result in lost workdays or restricted duty. Further, he determined that 

the violation was not S&S, the operator’s negligence was high, and that four people would be 

affected. Section 75.363(a) states, as relevant here, that any “hazardous condition found by a 

mine foreman or equivalent mine official . . . [including mine examiners] . . . shall be corrected 

immediately or the area shall remain posted until the hazardous condition is corrected.” 30 

C.F.R. § 75.363(a). The Secretary proposed a penalty of $4,000.00 for this order. 

Background

Inspector DiLorenzo testified that the 5 C belt advances with the working section as it 

progresses further into the mine. (Tr. 106). The accumulations consisted of loose coal, coal 

fines, and float coal dust that were black in color. The coal dust was upon all surfaces and 

structures. Piles of coal and coal fines were under the head and tail in an area that was 2 feet 

wide, 3 feet long, and 16 inches deep. Id. Loose coal and rib rolls were also present along both 

ribs up to 20 inches deep, 2 feet wide, and 15 feet long. This condition was continuously listed 

in the Inspection Reports since the day shift of July 28, 2009. (Tr. 107; Ex. G-12). At the 

hearing, Inspector DiLorenzo went through the Inspection Reports to show where the entries 

were made for belt 5 C and what the entries said. (Tr. 108-09). The inspector believed that an 

ignition or fire was unlikely because there were no friction or ignition hazards. (Tr. 110). 

Hammond explained that on the front page of each Inspection Report for a particular 

shift, the examiner records any “violations or hazardous conditions” that are discovered along a 

beltline. (Tr. 127). The examiner records on the back of the page any actions taken to remedy 

the hazards or violations recorded on the front of the page and also may add additional remarks 

concerning the conditions he observed along the belts. These remarks are “conditions that are 

observed by an examiner which he deems are not hazardous conditions or violations.” Id. By 

 6

 Peabody paid the Secretary’s proposed penalty for this citation so the conditions 

described therein are deemed admitted. 

36 FMSHRC Page 784
company policy, any conditions recorded in the “Violations or Hazardous Conditions” column on 

the front of the page are to be corrected immediately. (Tr. 128). Conditions listed in the 

“Remarks” column do not require immediate attention. 

Hammond did not dispute that the conditions described in Citation No. 8420822 by 

Inspector DiLorenzo existed on August 5, 2009. (Tr. 129-30; Ex. R-16). Nevertheless, he does 

not believe that the conditions set forth in the citation created a hazard because there were no 

ignition sources that could ignite the accumulations. (Tr. 130). He testified that the presence of 

coal in a coal mine does not constitute a hazard because “coal in itself is not a hazardous 

condition.” Id. 

Discussion and Analysis

Peabody contends that all the references in the Inspection Reports to areas along the 5 C 

belt that needed to be cleaned were in the remarks section on the back page for each shift. These 

entries did not document hazardous accumulations that needed to be immediately removed but 

documented conditions that needed attention but were not hazardous. When the inspector issued 

the underlying citation, he determined that the accumulations were unlikely to result in an injury, 

which confirms the examiners’ conclusion that the conditions did not present a hazard. Peabody 

argues that section 75.363(a) was not violated because “hazardous conditions” were not “found” 

by the mine examiners. The conditions that the examiners found and recorded in the comments 

section were not required to be immediately corrected because they were not hazardous. 

The Secretary argues that the conditions the inspector observed created the safety hazards 

of inhalation of smoke and burns. A violation need not be S&S to create a hazardous condition. 

The lack of ignition sources, while relevant when considering whether the cited condition was 

S&S, is not relevant when considering whether a hazard existed. (Sec’y Br. 23). The Secretary 

states that any injuries resulting from the accumulations “could reasonably be expected to result 

in lost workdays or restricted duties.” Sec’y Br. 21. 

In Black Beauty Coal Co., Commission Judge Miller set out the following test for 

analyzing whether the safety standard has been violated: 

In order to establish a violation, the Secretary must first 

demonstrate that “hazardous conditions” existed. Next, she must 

establish that the hazard had not been corrected or posted. Hence, 

the Secretary has the burden of demonstrating that the conditions 

listed by [the inspector] are a hazard, that they can cause damage 

or accidents. Once the existence of a hazard has been established, 

the focus shifts to the actions, if any, taken to remediate the 

condition. 

33 FMSHRC 1504, 1511 (June 2011) (ALJ). 

Whether the conditions observed by Inspector DiLorenzo were hazardous is a close 

question. In Citation No. 8420822, the underlying citation that was issued under section 75.400 

36 FMSHRC Page 785
for the accumulations, was marked as non-S&S, and an injury or illness was marked as 

“unlikely.” The accumulations were extensive, but there were no ignition sources in the area. 

In Enlow Fork Mining Co., the Commission considered a similar issue under section 

75.360(b). 19 FMSHRC 5 (Jan. 1997). That safety standard requires that persons conducting 

preshift examinations “shall examine for hazardous conditions and violations of mandatory 

health or safety standard . . . .” 30 C.F.R. § 75.360(b). There is no indication that the Secretary 

intended the term “hazardous conditions” to have a different meaning in section 75.360(b) than 

in section 75.363. In Enlow Fork, the Commission held: 

 Section 75.360(b) requires that a preshift examiner 

“examine for hazardous conditions.” We reject Enlow’s argument 

that, because the judge concluded the . . . accumulations were not 

S&S, they were not “hazardous” within the meaning of section 

75.360(b). The plain language of section 75.360(b) does not 

support Enlow’s construction. Section 75.360(b) does not specify 

that hazardous conditions are only those reasonably likely to result 

in serious injury, nor does that section repeat the S&S language 

from section 104(d) of the Act, requiring that the conditions be “of 

such nature as could significantly and substantially contribute to the 

cause and effect of a . . . mine safety or health hazard . . . .” 

 Section 75.360(b) does not define the phrase “hazardous 

condition.” However, the Commission recognized in National 

Gypsum that, based on its dictionary definition, a “hazard” denotes 

a measure of danger to safety or health. 3 FMSHRC at 827 & n.7. 

The Commission has approved the definition of “hazard” as “a 

possible source of peril, danger, duress, or difficulty,” or “a 

condition that tends to create or increase the possibility of loss.” Id. 

(citing Webster’s Third New International Dictionary 1041 (1971)). 

Accumulations of combustible materials have been recognized by 

Congress and this Commission as representing hazardous 

conditions. (citations omitted). 

19 FMSHRC at 14. The Commission concluded that “accumulations of combustible materials 

qualify as hazardous conditions that should be recorded by a preshift examiner when found.” Id.

at 15. Although I conclude that there may be accumulations that should not be considered a 

hazardous condition, I credit that testimony of Inspector DiLorenzo that the accumulations were 

obvious and extensive. (Tr. 111-12). Consequently, the accumulations were a hazardous 

condition that was required to be immediately removed. 

The Inspection Reports indicated that accumulations were “found” along the 5 C Belt for 

several shifts between July 28, 2009, and August 5, 2009. (Ex. G-12). These conditions were 

recorded in the comments section of the Inspection Reports. The issue is whether Peabody took 

actions to immediately remove the hazardous conditions after they were found. Peabody argues 

that it did, as recorded in the Inspection Reports: 

36 FMSHRC Page 786
July 29, 2009, midnight shift: “cleaned tail’ (Ex. G-12 at 180). 

July 31, 2009, day shift: “Drive pressings-cleaned” (Ex. G-12 at 195). 

August 1, 2009, midnight shift: “Drive pressings-cleaned” (Ex. G-12 at 197). 

August 1, 2009, afternoon shift: “Drive pressings-cleaned” (Ex. G-12 at 199). 

August 3, 2009, day shift: “Cleaned tail” (Ex. G-12 at 209). 

(Peabody Br. at 25). The Secretary does not dispute these notes, but contends that there are no 

similar notations for other shifts and, more importantly, there is no indication that the entire 

beltline was completely cleaned during this period. The inspector testified that the accumulation 

extended for about 13 crosscuts along the beltline and that he observed different types of 

combustible material along the belt including loose coal, coal fines, and float coal dust. (Tr. 

106). Given the size of the accumulation, Inspector DiLorenzo believed that it had existed for a 

lengthy period of time. 

 I find that although Peabody had performed some cleanup work, the Secretary established 

that Peabody failed to remediate the condition. I find that the Secretary established a violation of 

75.363(a) because it did not immediately remove the accumulation. 

 The Secretary maintains that all the factors relevant to high negligence and unwarrantable 

failure findings are met. The violation existed for one week. The underlying violation was 

obvious and extensive, with accumulations along the belt for 13 crosscuts. Peabody was placed 

on notice that greater efforts were necessary to comply with section 75.400. Peabody knew of 

the violative conditions, as documented in the Inspection Records, but allowed them to continue 

for many days. The underlying condition presented a discrete safety hazard. 

 Peabody contends that the Inspection Reports demonstrate that it cleaned areas along the 

belt at least five times between July 29 and August 5, 2009. The evidence establishes that 

Peabody took deliberate steps to keep its beltlines clean. The cited condition did not present a 

high degree of danger because there were no ignition sources present. Indeed, in both the 

underlying citation and the subject order the inspector determined that an injury was unlikely. 

The company’s examiners acted in good faith when they reasonably determined that, because no 

ignitions sources were present, the accumulations did not create a hazardous condition. 

 Although the Secretary established some of the unwarrantable failure elements, I find that 

Peabody’s conduct did not demonstrate an unwarrantable failure to comply with section 

74.363(a). Peabody regularly examined the 5 C belt and carefully monitored conditions along 

the belt. It removed accumulations near the head and tail as needed. It reasonably and in good 

faith believed that a hazardous condition does not exist unless ignition sources are present. If 

accumulations were close to the bottom of the belt or rollers and pulleys, it immediately cleaned 

the accumulation. 

In Kellys Creek Resources, Inc., the Commission held that “if an operator acted on the 

good-faith belief that its cited conduct was actually in compliance with applicable law, and that 

belief was objectively reasonable under the circumstances, the operator’s conduct will not be 

considered to be the result of unwarrantable failure when it is later determined that the operator’s 

36 FMSHRC Page 787
belief was in error.” 19 FMSHRC 457, 463 (Mar. 1997) (emphasis added). I credit the testimony 

of Hammond that Peabody did not consider that the conditions along the 5 C belt created a 

hazard because there were no ignition sources that could ignite the accumulations. (Tr. 130). 

Coal is everywhere in a coal mine with the result that its mere presence does not necessarily 

create a hazard. Consequently, Peabody reasonably believed an accumulation was not a 

“hazardous condition,” as that term is used in the safety standard, if no ignition sources were 

present. 

 It is difficult to ascertain how long the accumulations Inspector DiLorenzo observed had 

existed. More than likely some of the accumulations existed for a shift or longer. I find that 

Peabody’s violation of section 75.363(a) was not the result of its unwarrantable failure to comply 

with that standard. I find that the violation was serious and was a result of low negligence. 

Order No. 8420824 is MODIFIED to a section 104(a) citation with low negligence. A 

penalty of $2,000.00 is appropriate for this violation. 

D. Citation Nos. 8420857 and 8420858; LAKE 2010-106

On August 31, 2009, Inspector DiLorenzo issued Citation No. 8420857 under section 

104(a) of the Mine Act, alleging a violation of section 75.403 of the Secretary’s safety standards. 

(Ex. G-13). The citation stated that two out of 13 samples collected along the 2 Right, 3 Right, 4 

Left in the 4 Main North intake and return air courses contained less than the percent of 

incombustible content required by the standard. Inspector DiLorenzo determined that an injury 

was unlikely to occur. Further, he determined that the violation was not S&S, the operator’s 

negligence was high, and that 10 people would be affected. 

At the time this citation was issued, section 75.403 stated that where rock dust is 

required, “it shall be distributed upon the top, floor, and sides of all underground areas of a coal 

mine and maintained in such quantities that the incombustible content of the combined coal dust, 

rock dust, and other dust shall not be less than 65 per centum, but the incombustible content in 

the return aircourses shall be no less than 80 per centum.” 30 C.F.R. § 75.403. The Secretary 

proposed a penalty of $3,405.00 for this citation. 

On August 31, 2009, Inspector DiLorenzo issued Citation No. 8420858 under section 

104(a) of the Mine Act, alleging a violation of section 75.403 of the Secretary’s safety standards. 

(Ex. G-14). The citation stated that 12 out of 33 samples collected along a different area of the 1 

Right, 3 Right, 4 Left in the 4 Main North intake and return air courses contained less than the 

percent of incombustible content required by the standard. Inspector DiLorenzo determined that 

an injury was unlikely to occur. Further, he determined that the violation was not S&S, the 

operator’s negligence was high, and that 10 people would be affected. The Secretary proposed a 

penalty of $3,405.00 for this citation. 

 

Background

 Inspector DiLorenzo testified that he took samples only from the floor of different areas 

off the 4 Main North entry (MMU-005) because the roof and ribs were too wet to take samples. 

36 FMSHRC Page 788
(Tr. 143). He did not specify in his notes why he only took floor samples. (Tr. 154-55). Two of 

the first 13 samples collected contained less than the required percentage of incombustible 

material when tested by MSHA’s laboratory. (Tr. 142-43; Ex. G-16). He issued Citation No. 

8420857 based upon these noncompliant samples. 

 Inspector DiLorenzo then traveled to a different area of MMU-005 and took 33 samples 

off the 4 Main North. The inspector testified that he took all these samples except one from the 

floor of the mine because the ribs and roof were too wet. (Tr. 148; Ex. G-16). Again, the 

inspector’s contention that the roof and ribs were too wet to sample is not documented in his 

contemporaneous notes. MSHA’s laboratory determined that 12 of the 33 samples collected 

contained less than the required amount of incombustible material. Id. He issued Citation No. 

8420858 based upon these noncompliant samples. 

 When taking samples under section 75.403, MSHA inspectors generally take band 

samples. Samples are taken from the roof, ribs, and floor following a procedure set forth in 

MSHA’s General Coal Mine Inspection Procedures Handbook. (Ex. R-22 at 33-39). Steven 

Kattenbraker, a mine safety consultant and former MSHA Field Office Supervisor, testified on 

behalf of Peabody and described the procedures used by inspectors to determine if sufficient rock 

dust has been applied; samples should be taken from representative areas of the roof, ribs, and 

floor and the inspector should note if an area is too wet to sample. (Tr. 183-95). He believed 

that it was unusual for the roof and ribs to be too wet to sample at a given location when the floor 

is sufficiently dry to sample. (Tr. 193). Typically, if the roof and ribs are too wet, then the floor 

is too wet as well. Id. 

Discussion and Analysis

 Peabody contends that because the inspector did not take a band sample and only took 

spot samples from the floor, the rock dust survey was deficient and the citations must be vacated. 

There is no question that Inspector DiLorenzo did not take band samples as specified in the Coal 

Mine Inspection Procedures Handbook because all the samples except one were taken from the 

mine floor. The issue is whether that fact alone should invalidate the samples. 

 The safety standard does not require that band samples be taken. In Consolidation Coal 

Co., Commission Judge Jerold Feldman held “[w]hen an MSHA inspector departs from 

recommended procedure by collecting floor samples instead of band samples as representative of 

mine conditions, the Secretary must bear the burden of demonstrating the samples are 

representative.” 22 FMSHRC 455, 465-66 (Mar. 2000) (ALJ). Judge Feldman vacated the order 

alleging a violation of section 75.403 because the inspector sampled areas on the mine floor that 

the inspector believed looked “really bad” rather than random samples. Id. 

 I find that the conditions described in Citation Nos. 8420857 and 8420858 violated 

section 75.403. I agree with Judge Feldman’s analysis of the issue. I find that the evidence 

establishes that Inspector DiLorenzo took random samples from the floor. (Tr. 140-42, 151). 

There is no evidence that he looked for areas where the layer of rock dust appeared to be 

especially thin and that he collected the samples from those locations. He followed the 

inspection handbook except he did not sample from the ribs and roof. There is nothing in the 

36 FMSHRC Page 789
record to suggest that, in following this procedure, he obtained results that were unrepresentative 

of the mine environment. I find that the Secretary established a violation in each instance.7

 The violations were non-S&S. At the hearing, Inspector DiLorenzo agreed that only one 

miner would be affected and not ten as he alleged in the citations. (Tr. 144, 149). I reduce the 

gravity of the violations. 

 I find that the Secretary did not establish that the violations were the result of Peabody’s 

high negligence. Both violations occurred in return air courses. These areas are only regularly 

traveled by weekly examiners, who are required to travel the length of one entry. (Tr. 148, 162, 

165). There is no evidence as to how long the cited conditions existed. The inspector did not 

issue the citations based upon his visual observations. He did not determine that the area needed 

to be sampled because the rock dust levels appeared to be low. When the area became return air 

courses, the area was no longer active but coal dust could have been deposited in the area. The 

only justification for the high negligence determination was Inspector DiLorenzo’s general 

testimony concerning Peabody’s compliance history under section 75.403. (Tr. 145-46; Ex. G26). 

 The citations are MODIFIED to reduce the number of people affected by the violations 

and to reduce the negligence to moderate. A penalty of $2,000.00 is appropriate for each of these 

violations. 

 

E. Order No. 8416329; LAKE 2010-39

On June 17, 2009, Inspector DiLorenzo issued Order No. 8416329 under section 

104(d)(2) of the Mine Act, alleging a violation of section 75.364(b)(4) of the Secretary’s safety 

standards.8 (Ex. G-19). The order states, in part, that an inadequate examination was conducted 

of the Main West seals on June 15, 2009. He determined that there were 12 inches of water at 

the #3 seal, 17 inches of water at the #6 seal, 14 to 17 inches of water at the #7 seal and up to 44 

inches of water at the #8 seal. The order states that the pumps were de-energized at the time of 

the inspection. 

Inspector DiLorenzo determined that an injury was reasonably likely and that any injury 

could reasonably be expected to result in lost workdays or restricted duty. Further, he 

determined that the violation was S&S, the operator’s negligence was high, and that one person 

would be affected. Section 75.364(b)(4) requires that at least once every seven days, “an 

examination for hazardous conditions” shall be made by a certified person “at each seal along 

return and bleeder air courses and at each seal along intake air courses. . . .” 30 C.F.R. § 

75.364(b)(4). The Secretary proposed a penalty of $4,099.00 for this order. 

 7

 Peabody did not argue that there were insufficient numbers of noncompliant samples 

to establish violations of the standard. 

8

 The subject order is dated June 18, 2009, but Inspector DiLorenzo testified that his 

inspection was actually on June 17, 2009. (Tr. 215). 

36 FMSHRC Page 790
Background

Inspector DiLorenzo testified that the water at the #8 seal spanned the entire entry and 

spread outby toward the #7 seal for a distance of 45 feet. (Tr. 199; Ex. G-19). The water pumps 

in the area were de-energized and all the power cords were unplugged. (Tr. 204, 242). The 

inspector checked the record books which indicated that flooding was reported in the area on 

June 8, 2009, but the record for the most recent examination on June 15, 2009, reported no 

hazards in the area. (Tr. 203; Ex. G-20). Inspector DiLorenzo assumed that an adequate 

examination of the seals did not occur on June 15 because the water he observed on June 17 must 

have been present on June 15. (Tr. 215). 

 Peabody presented testimony concerning the chronology of events leading up to the time 

of the inspection. Peabody presented evidence that during a weekly examination of the area on 

June 8, 2009, Andrew Herndon, an examiner for Peabody, discovered that the area in front of 

several seals was flooded, including the #7 and #8 seals. (Tr. II 48).9 He recorded this condition 

in the record book. It was later documented in this book that pumping in the area was “in 

progress.” (Ex. G-22). Herndon’s next examination of the area was during the midnight shift on 

June 15. The water that was present on June 8 was no longer present; there was no water in the 

area at the time of his examination. (Tr. II 48). He was able to examine the face of the #8 seal 

and he put the date, time, and his initials upon the card at the seal face. (Tr. II 47). 

 During the midnight shift on June 16, Pumper John Lane was in the area to do 

permissibility examinations of the pumps. (Tr. II 19-20). He testified that the pumps were 

running and there was no flooding in front of the #8 seal. He de-energized the pumps in the area 

because he saw a broken discharge line just inby the main sump. (Tr. II 20-21). He needed to 

take this action to repair the discharge line, which took about two hours. (Tr. II 21-22). He 

restarted the pumps before he left the area. 

 Lane returned to the area on the midnight shift of June 17 to complete his permissibility 

examinations. He testified that the pumps were running and the area was not flooded. (Tr. II 

23). He examined the explosion-proof, permissible electrical box called the “suitcase” and the 

surrounding electrical cables. (Tr. II 23-24). He wrote the date, time, and his initials upon the 

suitcase. The pumps were running and the area was not flooded when he left the area. Id.

 Inspector DiLorenzo conducted an inspection of the Main West seals during the afternoon 

shift on June 17. His escort was Randall Hammond. (Tr. II 58). As the inspection party entered 

the area, Hammond noticed that the cat heads (plugs) at the electrical distribution box were 

disconnected and laying on top of the box. (Tr. II 59-60). When the inspection party arrived at 

the seals, the pumps were not working and the area was flooded. The flooding that was present 

at the time of MSHA’s inspection was not present the last time Lane was there on the midnight 

shift earlier that day. (Tr. II 25-26). 

 9

 The transcript was renumbered the second day of the hearing. Transcript references 

designated with “II” refer to the second day of the hearing. 

36 FMSHRC Page 791
Discussion and Analysis 

The area at the #8 shield was about 6 miles from the closest active area of the mine. This 

cited area was the lowest point at the mine and the #8 seal was at the bottom. A series of pumps 

were present to pump water out of the area, which was a continuous process. (Tr. II 10). If the 

pumps do not operate, the area will flood. (Tr. II 14-15). If water in front of seals impedes the 

examiner’s ability to safely perform his weekly examination, a violation of section 75.364(b)(4) 

is established. 

 I find that the Secretary did not establish a violation of section 75.364(b)(4). The fact 

that the area was flooded at the time of Inspector DiLorenzo’s inspection does not establish that 

the area was flooded during the previous weekly examination. The Secretary did not establish 

that the area was flooded at the time examiner Herndon conducted his examination on June 15.10 

Inspector DiLorenzo assumed that the water that was present on June 17 was present on June 15. 

(Tr. 215). Proof that conditions existed at the time of an MSHA inspection is, by itself, 

insufficient evidence to infer that the condition existed at the time of the examination. See e.g. 

Big Ridge, Inc. 33 FMSHRC 718-19 (March 2011) (ALJ). 

 I credit the testimony of John Lane, Andrew Herndon, and Randall Hammond as to the 

chronology of events between June 8 and June 17. I find that their testimony was lucid, logical, 

and trustworthy. I find that the cited area was not flooded during Herndon’s previous weekly 

examination and the area was not flooded when Lane left the area on June 17. The evidence 

establishes that Herndon conducted a proper weekly examination of the seals and that he placed 

the date, time, and his initials in the area. The Secretary did not establish that there were 

hazardous conditions present at the time of Herndon’s examination. Consequently, Order No. 

8416329 is VACATED. 

F. Order No. 8416348; LAKE 2010-39

On July 1, 2009, Inspector DiLorenzo issued Order No. 8416348 under section 104(d)(2) 

of the Mine Act, alleging a violation of section 75.364(b)(4) of the Secretary’s safety standards. 

(Ex. G-23). The order states, in part, that an inadequate examination was conducted of the Main 

 10 At the hearing, the principal focus was on the #8 seal because that seal is at the lowest 

elevation and water in the cited area flows down to the #8 seal. (Tr. 198, 213). In his brief, the 

Secretary for the first time focused on the #6 seal. (Sec’y Br. 29-34). He argues that the water 

Inspector DiLorenzo discovered at the #6 seal on June 17, 2009, could not have developed to a 

depth of 17 inches in the time since the Lane and Herndon were in the area. He argues that a 

significant amount of water must have been present at the #6 seal when the last examination took 

place. He bases this argument on the configuration of the pumps, water lines, and sumps. I 

reject this argument because there is not enough evidence in the record to make this finding. The 

Secretary bears the burden of proof. It also presupposes that water would simply sit in front of 

the #6 seal and not flow down to the lower seals. Herndon credibly testified that, when the 

pumps were de-energized, the area in front of the seals would flood within a matter of hours. 

(Tr. II 16, 22). 

36 FMSHRC Page 792
West seals on June 29, 2009. A water level line with condensation below it was observed over 5 

feet high on the #8 seal causing the surface plaster to crack and flake off. Water was leaking 

from the face of the seal and the condition of the mortar between the blocks evidenced that the 

cited condition existed for an extended period of time. The #4, #5, #6, and #7 seals were also 

observed with waterlines and condensation created by water impounded behind the seals. No 

hazards were listed in the weekly examination book. 

Inspector DiLorenzo determined that an injury was reasonably likely and that any injury 

could reasonably be expected to result in lost workdays or restricted duty. Further, he 

determined that the violation was S&S, the operator’s negligence was high, and that one person 

would be affected. The Secretary proposed a penalty of $4,099.00 for this order. 

Background

When Inspector DiLorenzo traveled to the #8 seal on July 1, he saw that it leaked water. 

(Tr. 225). The surface plaster on the seal was cracking and flaking off up to the water line. 

There were also red/orange deposits running down the front of the seal. (Tr. 209). Other seals 

also had water lines with condensation below these lines. He determined that water had backed 

up behind several seals. The inspector concluded that Peabody’s examiners were not performing 

adequate examinations because the hazard was not recorded and the conditions present would 

prevent an examiner from conducting an examination. 

Lane conducted a weekly examination of the area on June 22, 2009, and he observed no 

hazards. (Ex. G-25). Andrew Herndon conducted another weekly examination on June 29 and 

he testified that he did not observe any hazards. (Tr. II 50). At the time of Herndon’s 

examination, water was flowing out of the drain pipe at the bottom of the #8 seal. (Tr. II 51). 

Herndon testified that he did not observe any water leaking out of the seal and he did not see any 

water lines upon the seals, which would indicate that water was building up behind the seals. 

Discussion and Analysis

Based upon the evidence it presented, Peabody maintains that the Secretary failed to 

establish a violation of the safety standard. Inspector DiLorenzo issued the order because water 

was present behind the seals and was leaking through the mortar on July 1, 2009. (Tr. 209). He 

believed that Peabody should have known of the condition and that the weekly examiner failed 

to record the condition and immediately correct it. Herndon testified that when he conducted the 

weekly examination on June 29, 2009, water was coming through the pipe at the bottom of the 

seal and was not leaking through the mortar. (Tr. II 51). There was no sign that water was 

building up behind any of the seals. (Tr. II 51, 54). Any water lines visible across the face of the 

seal were from water that previously accumulated in front of the seals when the area flooded. 

There had been a flood in front of the seals on June 17. (Tr. II 30, 54). 

 As with the previous order, I find that the Secretary did not establish a violation. I 

incorporate my analysis of Order No. 8416329 into my analysis of the present order. Peabody 

does not dispute that if water is leaking out of the face of a seal or if water backs up behind a seal 

a hazardous condition is present that must be reported and corrected. (Peabody Br. 59; Tr. II 51). 

36 FMSHRC Page 793
As with the previous order, I credit the testimony of Peabody’s witnesses as to the chronology of 

events. The #8 seal is at the lowest point in the area and there is a pipe at the bottom of that seal 

that drains water from the area behind the seals. This pipe functioned correctly on June 22 and 

June 29 when weekly examinations were conducted. When Inspector DiLorenzo inspected the 

area on July 1, something prevented the water from flowing through the pipe and water backed 

up behind the seals. I credit the testimony of Peabody’s witnesses that this condition did not 

exist at the time of the weekly examinations and that the area can flood in a matter of hours if the 

pumping and drainage systems are not working.11 For the reasons discussed above, Order No. 

8416348 is VACATED. 

II. SETTLED CITATIONS AND ORDERS

 A number of the citations and orders at issue in these cases settled. By order dated June 

14, 2013, I approved the parties’ settlement of Order Nos. 8416419 and 8421022 in Docket No. 

LAKE 2010-39 and ordered Peabody to pay a penalty of $13,632.00. By order dated June 14, 

2013, I approved the parties’ settlement of 49 citations issued under section 104(a) of the Mine 

Act in Docket No. LAKE 2010-106 and ordered Peabody to pay a penalty of $122,920.00. 

III. APPROPRIATE CIVIL PENALTIES 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I reviewed the Assessed Violation History Report, which is not 

disputed. (Ex. G-26). At all pertinent times, Peabody was a large mine operator and the 

controlling company, Peabody Energy Corporation, was also a large operator. The violations 

were abated in good faith. The penalties assessed in this decision will not have an adverse effect 

on Peabody’s ability to continue in business. The gravity and negligence findings are set forth 

above. 

 11 The Secretary argues that Peabody should have known that the drainage system that 

was in place “was not draining the water behind the seals efficiently enough and that excessive 

pressure was being placed on the #8 seal, which could damage it.” (Sec’y Br. at 37). That issue 

is beyond the scope of this proceeding. The issue before me is whether the Secretary established 

that Peabody violated section 75.364(b)(4) by failing to perform an adequate weekly 

examination. 

36 FMSHRC Page 794
IV. ORDER

 Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

 Citation/Order No. 30 C.F.R. § Penalty

LAKE 2010-39 

 8421014 75.400 $12,000.00 

 8420824 75.363(a) 2,000.00 

 8416329 75.364(b)(4) Vacated 

 8416348 75.364(b)(4) Vacated 

LAKE 2010-106 

 8421043 75.1403-5(g) Vacated 

 8420857 75.403 2,000.00 

 8420858 75.403 2,000.00 

 

 TOTAL PENALTY $18,000.00 

For the reasons set forth above, the citations are MODIFIED, or VACATED as set forth 

above. Black Beauty Coal Company is ORDERED TO PAY the Secretary of Labor the sum of 

$18,000.00 within 30 days of the date of this decision. 12

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

 12 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

36 FMSHRC Page 795
Distribution: 

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, CO 80202-5708 (Certified Mail) 

Arthur M. Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., 

Pittsburgh, PA 15222 (Certified Mail) 

RWM 

36 FMSHRC Page 796
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 4, 2014 

ORDER GRANTING IN PART RESPONDENT’S MOTION TO AMEND NOTICE OF 

HEARING; DENYING COMPLAINANT’S MOTION TO ALLOW PRESENTATION OF 

ADDITIONAL LAY AND EXPERT EVIDENCE AT RE-TRIAL; AND RESERVING 

RESPONDENT’S MOTION TO COMPEL DISCOVERY

Before: Judge Rae 

This case is before me upon a Complaint of Discrimination under section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). The Respondent has filed a 

Motion to Amend the Notice of Hearing and a Motion to Compel Discovery. The Complainant 

has filed a Response in Opposition to the Motion to Amend the Notice of Hearing, and a Motion 

to Allow Presentation of Additional Lay and Expert Evidence at Re-Trial. 

Procedural History 

Gray petitioned for remand of my decision issued on October 20, 2011 based upon my 

pre-trial order of December 8, 2011 in which I denied Gray’s request to introduce the written 

reports and testimony of Larry Miller and Peter Belcastro, two handwriting experts. Gray’s brief 

in support of his petition for remand filed with the Commission on January 17, 2012 states that 

“the ALJ improperly prohibited two expert witnesses from testifying ... about two purported 

written warnings” issued by North Fork to Gray. In his brief, Gray goes on to state that his case 

was “heavily dependent on the expert testimony” and that their exclusion was an abuse of 

discretion, their exclusion warranting a new trial. The only two witnesses identified or referred 

to in his assignment of error and request for remand at the Commission level were Miller and 

Belcastro. No issues other than the exclusion of this evidence were raised in Gray’s brief or his 

petition for remand filed on November 29, 2011. 

The issue of the exclusion of the two handwriting experts was accepted for discretionary 

review by the Commission. On August 22, 2013, the Commission issued a remand directing 

MARK GRAY, 

 Complainant 

v. 

NORTH FORK COAL CORPORATION, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 DISCRIMINATION PROCEEDING 

Docket No. KENT 2010-430-D 

BARB-CD-2009-13 

Mine ID: 15-18340 

Mine: Mine No. 4 

36 FMSHRC Page 797
further proceedings in accordance with its ruling. It agreed with Gray that “the excluded 

evidence is the ‘centerpiece of [the] case.’” In its decision, the Commission went to great 

lengths to discuss the exclusion of the testimony of these two identified handwriting specialists 

as being improper. The majority hypothesized that potentially different credibility 

determinations would have been made by me with respect to management and non-management 

witnesses for North Fork and against Gray had there been evidence that the two written 

counseling warnings issued to Gray had involved forgery. Despite the fact that there was nondocumentary evidence that supported the testimony of management and non-management 

personnel regarding verbal counseling as well as poor performance issues, the majority1

 opined 

that the expert testimony concerning a possible tracing of a signature on the written warnings 

would have led to a different outcome. In sum, the majority of the Commission issued a remand 

order on the sole issue of whether the two handwriting experts should have been allowed to 

testify which they answered in the affirmative. No other issue was accepted for remand, raised 

sua sponte or included in its remand order. 

Following a conference call I held with counsel on January 13, 2014, counsel for North 

Fork raised the issue of the scope of the hearing to be held pursuant to the remand order. See Ex. 

1 Trans. CC. During that conference, I stated that it was my intention to take the testimony of 

the two expert witnesses and any witness(es) North Fork deemed necessary to rebut the expert 

testimony. Counsel for Gray disagreed with this interpretation of the remand order and indicated 

that he wished to call additional lay and expert witnesses. Thereafter, North Fork submitted a 

motion on January 22, 2014 to amend the Notice of Hearing to state with more specificity that 

the issue for hearing will be limited to the expert testimony from Belcastro and Miller and any 

rebuttal North Fork may have thereto. On January 24, 2013, a second conference call was held 

with counsel during which Gray’s attorney raised the issue of the scope of the hearing once 

again, indicating he had both a lay witness and one expert witness he wished to present at 

hearing. I informed counsel that a responsive pleading to North Fork’s motion would suffice to 

raise the issue for a ruling by the court. He requested until February 12 to file his response. 

Counsel for North Fork agreed to extend the due date of the response until February 12 and I so 

ordered his response and any other motions to be filed by February 12, 2014. Ex. 2 Trans. of 

CC. Two days beyond the ordered due date, on February 14, 2014, Gray submitted his Response 

in Opposition to North Fork’s Motion to Amend the Notice of Hearing and filed his own motion 

to allow the presentation of additional lay and expert testimony. Both Gray’s Response and 

Motion raise the same issues and are consolidated in this Order.2

1

 Chairman Jordan issued a dissenting opinion in which she opined that the majority’s 

finding that a different result would have obtained had the handwriting experts testified was 

“highly speculative.” She points out that Belcastro’s opinion was equivocal at best as to whether 

there was a forgery. The opinion goes on to state that even the testimony of an individual 

involved in the alleged forgery could be credited as to other aspects of his testimony and that the 

alleged forgery has no relation to the testimony of management and non-management employees 

who are not linked to the written warnings, particularly as it relates to the consistent statements 

that no deep cuts were made at the mine or that Gray was a poor performer. 

2

 North Fork also raised the issue of discovery of documentation of Gray’s attorney’s fees 

at the conference calls and in its Motion to Amend as well as in a Motion to Compel. I reserve 

ruling on the issue of discovery at this time as more fully explained below. 

36 FMSHRC Page 798
Discussion and Analysis 

Scope of Review

As set forth above, Gray filed a petition and supporting brief for discretionary review 

raising the exclusion of Miller and Belcastro as witnesses at hearing. Grays’ requested relief was 

a reversal of the decision and remand “for the taking of additional evidence, including the 

testimony of Gray’s expert witnesses” and a new trial. In support of his requested relief, Gray 

addresses squarely and solely the importance of the handwriting expert testimony to his case and 

the inability to present his case without it. This is the issue that the Commission accepted for 

review. While the majority opinion speculates on the possibility of a differing assessment of 

credibility of witnesses and outcome, it does so only to the extent that the two expert witnesses 

should have been permitted to testify and their reports admitted. The remand was issued in 

accordance therewith. No other issue was discussed or raised by the Commission sua sponte.

 Commission Procedural Rule 2700.70(g) provides “review shall be limited to the issues 

raised by the petition, unless the Commission directs review of additional issues pursuant to 

§2700.71.”3

 30 U.S.C. §823(d)(2)(A)(iii). The Commission has held that the Mine Act and

procedural rules preclude the consideration of issues raised even in briefs filed in support of 

review not included in the petition as outside the scope of review. Saab v. Dumbarton Quarry,

22 FMSHRC 491 (Apr. 2000). See also Broken Hill Mining Co., 19 FMSHRC 673 (Apr. 1997); 

Fort Scott Fertilizer-Cullor Inc., 19 FMSHRC 1511 (Sept. 1997) and Rock of Ages, 20 FMSHRC 

106 (Feb. 1998). “Sweeping” language contained in a petition for review will not broaden the 

scope of review where the issue is exclusion of evidence. Saab at 495. Those issues not 

accepted for review or raised by the Commission are considered final as of the date of the ALJ’s 

decision and become the final decision of the Commission within 40 days thereof if not accepted 

for review. 30 U.S.C. §823(d)(1). 

Gray’s petition for review was based upon the exclusion of the expert testimony. The 

first mention of presentation of any other specific evidence upon rehearing beyond that of the 

two handwriting expert witnesses was during the January 13, 2014 conference call. The new 

witnesses proposed by Gray in no way involve the issue of whether Gray’s signature on the 

written counseling forms are forgeries which was the issue upon which the experts would have 

provided testimony and written reports. Thus, these additional witnesses relate to issues which 

became final 40 days after issuance of my decision of October 20, 2011, well over two years ago. 

In accordance with the decision in Saab, there is no rational analysis under which Gray’s general 

3

 Commission Procedural Rule 2700.71 provides: “[a]t any time within 30 days after the 

issuance of a Judge’s decision, the Commission may, by the affirmative vote of at least two of 

the Commissioners present and voting, direct the case for review on its own motion. Review 

shall be directed only upon the ground that the decision may be contrary to law or Commission 

policy or that a novel question of policy has been presented. The Commission shall state in such 

direction for review the specific issue of law, Commission policy, or novel question of policy to 

be reviewed. Review shall be limited to the issues specified in such direction for review.” 29 

C.F.R. §2700.71. 

36 FMSHRC Page 799
prayer for a “new trial” broadens the scope of review beyond the issue of the inclusion of the 

expert witness testimony from Miller and Belcastro. 

The lay witness who Gray specifically named and has provided an affidavit of his 

expected testimony, supposedly will now testify years later to the issues of whether Gray 

complained to management of deep cuts. Michael Creech will also supposedly testify as to 

whether Gray was a poor worker or whether management wanted to be rid of him for making 

safety complaints. Gray also seeks to introduce the expert testimony of Tracy Stumbo regarding 

“mine safety.” There is a statement in Gray’s motion that miners “ordinarily” do not tell 

inspectors about unsafe conditions and that deep cuts would be bolted before an inspector would 

know of them. However, lacking is an affidavit or statement of expected testimony confirming 

what exactly Stumbo would testify to. 

The Commission made clear in its decision remanding the case that the issue on review 

was that Gray should have been permitted to pursue the issue of credibility of North Fork’s 

witnesses “by presenting the expert testimony at the hearing.” (Emphasis added.) Assuming 

Stumbo would testify regarding the issue of deep cuts and complaints made to inspectors 

generally, these issues as well as the ones raised by the proposed lay witness are not within the 

scope of review directed by the Commission and must be denied. 

F.R.C.P. 59 and 60(b)

In addition to asserting that the scope of the remand order embraces the right to call 

additional witnesses, Gray argues that Federal Rules 59 and 60(b)(2) should allow for a new trial 

based upon newly discovered evidence.4

 Gray’s Mot. at 6. 

Fed. R. Civ. P. 59(a) empowers the judge to grant a new trial, to take additional 

testimony, amend findings of fact or conclusions or make new ones. In order to seek a new trial, 

the movant must file a motion with affidavits within 28 days of entry of judgment. The opposing 

party is then provided 14 days to file opposing affidavits. Fed. R. Civ. P. 59(b). My decision 

was issued on October 20, 2011. Gray’s motion to allow additional witnesses was filed on 

February 14, 2014, 28 months later. Gray’s petition for discretionary review was filed on 

November 21, 2011, also more than 28 days after my decision was issued. Even if one were to 

interpret the rule to mean that the motion could be filed within 28 days to the Commission rather 

than the trial court, Gray’s petition for review would not have met the statutory requirements of a 

motion for new trial under Rule 59. Not only was it filed more than 28 days after the decision 

was issued but it did not include affidavits from the proposed witnesses from whom Gray would 

elicit new evidence. Gray’s motion fails under Fed. R. Civ. P 59. 

Rule 60(b) affords grounds for relief from a final judgment or order under certain 

circumstances. Gray seeks relief under Rule 60(b)(2) for newly discovered evidence not 

discovered in time to move for a new trial under Rule 59(b). One of the requisite elements of 

filing for a new hearing under Rule 60(b)(2) is that the request is made no more than one year 

4

 Gray also cites Commission Procedural Rule 54 in support of reopening the hearing. 

That rule pertains to providing notice of hearing at least 20 days prior to hearing and is not 

applicable here. 

36 FMSHRC Page 800
after the entry of judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c)(1). The 

Commission and federal case law interpret the time limitation as an absolute requirement. 

Tolbert v. Cheney Creek Coal Corp., 12 FMSHRC 615 (Apr. 1990); Warren v. Garvin, 219 F.3d 

111, 114 (2d Cir. 2000). 

The testimony Gray seeks to introduce at rehearing, other than that of Belcastro and 

Miller, addresses issues not raised in his request for review or embraced within the scope of the 

Commission’s order for review. It is, therefore, time-barred as final judgment as to all other 

issues was entered 40 days after the issuance of the October 20, 2011 decision by operation of 

law. 30 U.S.C. §823(d)(1). See also Pittsburg & Midway Coal Mining Co., Supra. 

In addition to the time requirement, Rule 60(b) imposes several other statutory 

requirements to obtain a new trial based upon newly discovered evidence. The evidence must 

have been in existence at the time of trial but not in the movant’s possession. It could not have 

been obtained in time for trial or in time to move for a new trial under Rule 59 even by 

exercising due diligence, the evidence must not be merely cumulative and, finally, it must be 

shown that it would change the result. Fed. R. Civ. P. 60(b)(2); Darwin Stratton & Son, Inc., 26 

FMSHRC 787 (Oct. 2004). 

Michael Creech is the lay witness named in Gray’s motion. Creech states in his affidavit 

that he was employed by North Fork for 2 years and worked with Gray for some time before 

Gray was fired, had seen deep cuts being taken and had been told to bolt faster than Gray to 

make him look “bad.” He “heard” an unidentified member of management say they wanted to 

be rid of Gray because of his complaints. Creech stated he did not come forward with the 

information at the time Gray was discharged because he was still working at the mine and he was 

in fear of losing his job. Creech Aff. Gray states in his motion that he spoke with Creech and 

other unidentified employees prior to trial who “would not tell the truth about deep cuts.” Gray’s 

Mot. at 5 n.4. Examining these facts, it appears that Gray was likely in possession of this 

information prior to trial, particularly Creech’s information. 

Gray makes no claim, nor is there any evidence that he attempted to subpoena Creech at 

hearing or secure his presence or testimony in any other manner. Moreover, since Creech was 

employed by North Fork for 2 years and was working at the mine prior to Gray’s discharge 

which occurred on May 15, 2009, he would no longer have been employed there by May 2011, 

at the latest. His fear of reprisal would no longer have been present. His date of departure from 

North Fork preceded the date of my decision of October 20, 2011 by approximately 5 months. 

Gray still had 28 days thereafter to file for a new hearing under Rule 59 based upon Creech’s 

information. Gray makes no claim that he attempted in any way to secure an affidavit from 

Creech within this time frame or at any other time prior to his signing his February 11, 2014 

affidavit - just 2 days before Gray submitted his motion. Not only does it appear that Gray failed 

to exercise due diligence in procuring Creech’s testimony for hearing, but he also failed to 

exercise due diligence in procuring it in a timely manner to seek a new trial under Rule 59 after 

the decision was issued. No explanation is given by Gray for this failure. It also appears that the 

information was in his possession at the time he sought discretionary review with the 

Commission in November 2011 and he did not raise the issue there either in support of his 

request for a new trial. It appears on its face that the need for Creech’s testimony, including 

36 FMSHRC Page 801
hearsay statements, is an idea that bloomed as an afterthought in view of the court’s and 

Commission’s decisions. Reopening of litigation on the grounds that the Complainant could not 

have foreseen a claim made by him would be rejected by the court without an absent witness is 

inappropriate. See Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 568 n.14 (5th Cir. 1985); 

Washington v. Patlis, 916 F.2d 1036 (5th Cir. 1990). 

A motion for a new trial is an extraordinary form of relief. Washington v. Patlis, Supra. 

Assuming Creech’s testimony was deemed admissible, it cannot be concluded that it would 

change the outcome. There are no indicia of reliability attached to Creech’s affidavit. It does 

not indicate when the purported deep cuts were made that he observed, who in management was 

aware of them, who ordered them, or on what shift they occurred. Similarly, he does not indicate 

which member of management purportedly told him to work faster than Gray or to whom or 

when Gray made safety complaints. The hearsay statement that he “heard a member” of 

management say the company wanted to fire Gray for his complaints also lacks sufficient 

specificity. The affidavit as a whole lacks any specific information or facts that would lend it 

any credibility despite the fact that Creech made his affidavit long after any fear of reprisal was 

removed and for the specific purpose of assisting Gray in seeking the extraordinary relief of a 

new trial. 

Aside from the issue of credibility, Creech’s information would not necessarily change 

the outcome for other reasons. I did not assess the credibility of North Fork’s witnesses over 

Gray’s based solely on the fact that they testified consistently with one another. Without 

reiterating my findings in detail here, some of the facts that I looked at were that each of the 

miners who would have been involved in making and/or bolting the alleged deep cuts denied one 

had been made, that Gray’s bolting partner had been verbally counseled along with Gray for his 

poor performance, that Gray had told his partner that he had been counseled in the past for poor 

performance not related to slow bolting, that his partner had never heard Gray make any safety 

complaints or fail to perform unsafe work, that based upon the geological conditions cuts were 

not made in excess of 20 feet, and that the very day Gray was terminated he did not make a 

complaint to MSHA Inspector Doan who was inspecting Gray’s bolter on Gray’s shift. Five of 

the witnesses who testified for North Fork had no involvement with the alleged forgery or the 

counseling warnings. There was independent documentary evidence that Gray was counseled 

for poor performance not only limited to slow bolting. Additionally, Gray made statements to 

his roof bolting partner that he had an attorney who would file discrimination charges if he was 

fired and denied unemployment benefits, providing motive to falsely report deep cuts. In sum, 

there is no indication that Creech’s testimony would change any of my credibility determinations 

or the ultimate outcome either on the issue of whether Gray engaged in protected activity or on 

North Fork’s affirmative defense. 

For the foregoing reasons, I find that Gray’s request to present the testimony of Creech 

(or any heretofore unnamed miners) under Rule 60(b) must be denied. 

Gray also requests the appearance of Tracy Stumbo who he identifies as an expert in 

mine safety. While an affidavit of Stumbo’s testimony is not offered, Gray alludes to his 

testifying that deep cuts could have been made in the mine despite the geologic conditions. In 

the conference call of January 13, 2014, counsel stated that there was no evidence on the issue 

36 FMSHRC Page 802
from the complainant at trial and they wish to call an expert witness “just generally about taking 

deep cuts and whether or not that means you will have a roof fall.” Trans. of CC Jan 14, 2014. 

Again, this appears to be an afterthought of Gray’s in light of the decision that perhaps he should 

have addressed that issue at hearing. This is not a proper basis for granting extraordinary relief. 

Furthermore, there is nothing in Gray’s motion regarding his proposal to tender Stumbo as a 

witness that meets the requirements of Rule 60(b). Gray does not address the issue of whether he 

was in possession of Stumbo’s expected testimony prior to trial or why he could not have 

presented this testimony at hearing through Stumbo or another witness had he exercised due 

diligence. There is nothing offered to lead to the belief that the information Gray seeks to 

introduce now is unique and known only to Stumbo. Counsel’s representations during the 

conference call suggest his information would be general in nature and known to any person 

familiar with the geologic conditions and mining practices in Kentucky. This issue could easily 

have been addressed at trial. There is also no reason to find that the information would have 

changed the result. The information is only one basis upon which I made credibility 

determinations of the witnesses who appeared at trial. Even assuming taking a deep cut would 

not have caused a roof fall, it would not affect my credibility determinations or relate to whether 

Gray engaged in protected activity or that North Fork presented a substantiated affirmative 

defense. It would serve, at most, only to impeach testimony on a non-determinative point. 

Evidence offered only for impeachment purposes is not the type of newly discovered evidence 

upon which to grant a new trial. See Bruno, 11 FMSHRC at 153; Baxter Int’l, Inc. v. Morris, 11 

F.3d 90 (8th Cir. 1993); Durango Gravel, 21 FMSHRC 1079 (Oct. 1999). 

In sum, Gray has not met the requirements of Rule 59 or Rule 60(b) granting a new trial 

to present additional testimony or evidence from any witness other than Miller and Belcastro. 

The scope of the remand was limited to the testimony (and written reports) of these two 

handwriting experts based upon a finding that their exclusion was improper. It allows for 

additional discovery and further proceedings directly related to the testimony of Belcastro and 

Miller. I interpret that to include the identification and discovery pertaining to any witnesses 

North Fork may offer in rebuttal to Belcastro’s and Miller’s testimony as well as introduction of 

any experts’ written reports. All other issues became final after 40 days of issuance of the 

October 20, 2011 decision. 

North Fork has requested an Amended Notice of Hearing to specify that the scope of the 

rehearing is limited to the testimony of Miller and Belcastro. North Fork also requests that Gray 

be held to a requirement that he state with certainty within 60 days of hearing whether or not 

Belcastro will testify. It also asks for an order to compel a response to discovery propounded 

upon Gray. 

36 FMSHRC Page 803
ORDER 

 For the foregoing reasons, Gray’s Motion to Allow Presentation of Additional Lay and 

Expert Evidence at Re-Trial and his general request for a new trial or trial de novo is DENIED. 

 North Fork’s Motion to Amend the Notice of Hearing to limit the trial to the testimony of 

Miller and Belcastro and their written expert reports being offered by Gray and evidence in 

rebuttal thereto by North Fork is GRANTED. 

 North Fork’s request that Gray be compelled to confirm that Belcastro will testify at 

hearing 60 days prior to hearing is GRANTED.5 

 North Fork’s request in its Motion to Amend and its Motion to Compel discovery is 

RESERVED at the present time in view of this decision and order.6

 

 

 

 /s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen M. Hodges, Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

 5

 The hearing is currently scheduled to commence on May 6, 2014. In order to afford 

both parties ample opportunity to complete discovery and preparation, the hearing may be 

continued upon motion by either party. 

6

 Because this Order limits the issues at hearing to the handwriting experts and rebuttal 

thereto, discovery shall also be so limited. The Respondent may desire to tailor its discovery 

accordingly. I will withhold ruling on that portion of Respondent’s Motion to Amend and its 

Motion to Compel and Complainant’s Response thereto until this Order becomes final. 

Respondent may renew its motion to compel thereafter. The issue of penalties, should Gray 

prevail, will be addressed post-hearing, however, I tend to agree with Complainant that his 

attorney’s fees at this stage of the proceedings are not discoverable unless Respondent can offer 

authority to the contrary. 

36 FMSHRC Page 804
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

 

March 4, 2014 

 

ORDER DENYING THE SECRETARY OF LABOR’S 

MOTION TO DISMISS NOTICES OF CONTEST

Before: Judge Steele 

The instant proceeding is before me on Elk Run Coal Company’s (“Elk Run” or 

“Contestant”) “Notice of Contest,” regarding a safeguard (No. 8154999) issued by the Secretary 

pursuant to Section 314(b) of the Act (30 U.S.C. §874(b) and 30 C.F.R. §75.1403-1. The 

Secretary of Labor, Mine Safety and Health Administration (“Secretary”) filed a “Motion to 

Dismiss Notices of Contest” on September 27, 2013. After consideration of the arguments of the 

parties and for the reasons set forth below, the Secretary’s Motion is hereby DENIED. 

The Notice of Contest was filed with respect to Safeguard 8154999 was issued on August 

1, 2013. The inspector allegedly noted bottom irregularities at the mine and issued the safeguard 

to prevent mud, ledges, and water accumulation in travel-ways. 

The Mine Act permits the Secretary to issue “safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize hazards with respect to transportation of 

men and materials....” See 30 U.S.C. § 874(b). “Once issued, the safeguard operates as a 

mandatory standard for that mine.” Oak Grove Resources, LLC, 2013 WL 4140414, *3 (July 25, 

2013). That is, from that point forward, failure to comply with safeguard will result in a citation 

or order just as if the operator had violated a promulgated mandatory standard. 

There is no question that the Commission has jurisdiction to decide on the validity of a 

safeguard after the issuance of a citation or order related to that safeguard and the proposal of a 

civil penalty. See e.g Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992); see also Secretary’s 

Motion to Dismiss at 3-6. The issue in this proceeding is whether the Commission has 

ELK RUN COAL COMPANY, 

 Contestant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDING 

Docket No. WEVA 2013-1298-R 

Notice of Safeguard No. 8154999; 

08/01/2013 

Mine: Powellton Deep Mine 

Mine ID: 46-09163 

36 FMSHRC Page 805
jurisdiction to determine the validity of a safeguard if no subsequent citation or order has been 

issued. 

The undersigned finds that Congress granted the Commission the necessary authority to 

hear this contest. The Mine Act confers upon Commission Judges jurisdiction to hear a variety 

of cases. See 30 U.S.C. §815(b)(2)(temporary relief orders); (30 U.S.C. §817(e)(contests to 

imminent danger orders); 30 U.S.C. 815(c)(complaints of discrimination); 30 U.S.C. 

§821(complaints for compensation). In this instance, the relevant jurisdiction is authorized in 

Section 105(d) (30 U.S.C. §815(d)).1

Further, “where the statute creates Commission jurisdiction, it endows the Commission 

with a plenary range of adjudicatory powers to consider issues, to make findings of fact and 

conclusions of law, and to render relief – in short, to dispose fully of cases committed to 

Commission jurisdiction.” Drummond Company, Inc., 14 FMSHRC 661, 674 (May 1992). 

There is no explicit grant of authority in the Mine Act empowering the Commission to 

consider the validity of safeguards. However, in addition to explicit authority, the Commission 

possesses implied authority to hear related issues. For example, the Commission has held (with 

Court of Appeals concurrence) that section 105(d) grants implied authority to grant declaratory 

relief, as appropriate, in contest proceedings. Kaiser Coal Corp., 10 FMSHRC 1165, 1171 (Sep. 

1988); and Climax Molybedenum Co. v. Secretary, 703 F.2d 447, 452 (10th Cir. 1983). 

 1

 That section states: 

If, within 30 days of receipt thereof, an operator of a coal or other 

mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a 

notification of proposed assessment of a penalty issued under subsection 

(a) or (b) of this section, or the reasonableness of the length of abatement 

time fixed in a citation or modification thereof issued under section 104, 

or any miner or representative of miners notifies the Secretary of an 

intention to contest the issuance, modification, or termination or any order 

issued under section 104, or the reasonableness of the length of time set 

for abatement by a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for a hearing 

(in accordance with section 554 of title 5, United States Code, but without 

regard to subsection (a)(3) of such section), and thereafter shall issue an 

order, based on findings of fact, affirming, modifying, or vacating the 

Secretary’s citation, order, or proposed penalty, or directing other 

appropriate relief. Such order shall become final 30 days after its issuance. 

The rules of procedure prescribed by the Commission shall provide 

affected miners or representatives of affected miners an opportunity to 

participate as parties to hearings under this section. The Commission shall 

take whatever action is necessary to expedite proceedings for hearing 

appeals of orders issued under section 104. 

36 FMSHRC Page 806
Similarly, the Commission held in Drummond that it had the implied authority to examine an 

MSHA Program Policy Letter based, in part, on the Mine Act’s grant of power to review 

“question[s] of law, policy or discretion,” and to direct review sua sponte of matters that are 

“contrary to...Commission policy” or that present a “novel question of policy.” Drummond 14 

FMSHRC at 674-675 citing 30 U.S.C. §823(d)(2)(A)(ii)(IV) & (B). 

I find that the instant proceeding presents just such an instance of implied authority. The 

authority to hear a citation or order implies the authority to examine the underlying safeguard. In 

this way, a safeguard is analogous to the situation in Drummond, where the Commission found 

that the ability to hear contest proceedings implied the authority to examine a Program Policy 

Letter issued by the Secretary which informed MSHA’s decision in proposing penalties. 14 

FMSHRC at 673-676. If a policy issued by the Secretary can form the basis for a citation or 

order then, under Section 105(d), the Commission has authority to hear a challenge to that 

issuance. Here, a safeguard serves as the first step in the issuance of a citation and as a threat of 

civil penalty. In fact, with the requirement that an operator correct the hazardous condition, a 

safeguard is analogous to a non-assessable citation. In light of this close nexus between a 

safeguard and a citation or order, I find that the Commission has authority to hear this case. 

Furthermore, due process and public policy also weigh in favor of finding Commission 

authority to hear such cases. 

In considering due process, it is important to note that even if no citation or order is 

issued with respect to a safeguard, that safeguard is already constraining or otherwise adversely 

affecting the operator. As noted supra, the safeguard acts as a mandatory standard at the subject 

mine. The operator is required to take potentially time-consuming or expensive actions to ensure 

that it complies with this new “standard.” In short, the Secretary’s actions with respect to a 

safeguard place some burden on the rights of a private individual (in this case a private 

corporation). I am concerned that without recourse to the Commission, an operator would have 

no way to challenge this government action and would suffer some harm to its rights. 

In the instant case, Contestant was required to change its behavior and to take potentially 

expensive and time-consuming actions based on a mandatory directive by a federal inspector. 

As a result, there must be some forum at which Contestant can apply for relief. It is impossible 

that an individual can be constrained by the government and maintain no avenue of appeal. 

In light of this infringement on an operator’s prerogatives, there must be some court or 

agency with jurisdiction over a safeguard even if there is no citation or order. If the Commission 

does not have jurisdiction to grant relief in this matter, then the Contestant must have recourse to 

an Article III tribunal. For the reasons stated supra, it is clear that Congress intended that the 

Commission, rather than a federal court, have jurisdiction over this matter. The federal courts 

agree. As the D.C. District court stated, when the “Secretary acts in a manner which adversely 

affects an operator, the proper procedure for review of that act [is] to proceed first to the 

Commission and then to the appropriate Court of Appeals.” See Bituminous Coal Operators’ 

Ass’n, Inc. v. Marshall, 82 F.R.D. 350, 353 (D.D.C. 1979). Therefore, in the interest of due 

process, the Contestant must have some recourse to judicial review and that judicial review 

should come from the Commission. 

36 FMSHRC Page 807
Beyond serving the interest of due process, the Commission’s exercise of authority over 

the instant proceeding also supports the purpose of the Act. As Congress noted, “the first 

priority and concern of all in the coal or other mining industry must be the health and safety of 

its most precious resource – the miner.” 30 U.S.C. §801(a). Mandatory standards, safeguards, 

and other protections afforded by the Act should be implemented in light of this goal to protect 

the health and safety of miners. 

In the instant situation, if the validity of the safeguard cannot be challenged until a 

citation or order is issued, an operator is confronted with a perverse incentive. If the operator 

believe that the safeguard is invalid it must choose to either comply with the safeguard and sit on 

its rights indefinitely (incurring delay and costs as a result) or to willfully violate the safeguard to 

gain access to the Commission. Under the latter approach, it is possible that miners would 

needlessly be exposed to hazards that might not otherwise arise. It order to protect its rights, an 

operator may be forced to place miners in harm’s way. Surely the Mine Act does not require 

such an absurd result. Exercising authority to hear the challenge to the safeguard now prevents 

such a situation from occurring. 

Finally, the Commission’s exercise of authority over the instant proceeding ensures that 

the validity of the safeguard is determined in a timely manner. If the Commission waits until a 

citation or order has been issued pursuant to a safeguard, the delay between the issuance and the 

challenge can be extreme. For example, in Oak Grove Resources, LLC, supra, the time between 

the issuance of the safeguard and the subsequent challenge was 22 years. Over the course of 

years an operator could spend large amounts of money complying with an invalid safeguard. 

More importantly, when the operator can finally challenge the standard, the inspector and 

everyone involved with the safeguard could be retired or deceased making the issue impossible 

to properly adjudicate. Therefore, the Commission’s ability to hear this case now protects the 

interest of fair and timely adjudication. 

The Secretary presented several arguments for why I do not have authority to hear this 

challenge to the safeguard. However, I do not find any of these arguments to be compelling. I 

will address each argument in turn. 

First, the Secretary cited Kaiser Coal Corp. for the proposition that the Commission is an 

adjudicatory agency of limited jurisdiction. (Secretary’s Brief at 3 citing 10 FMSHRC at 1169). 

Based on this holding, the Secretary averred that Section 105(d) delineates the scope of 

Commission authority to hear cases. (Id.). Specifically, the Secretary noted that Section 105(d) 

lists the situations in which the Commission has authority to hear a case and that, based on the 

principle of expressio unius, exclusio alterius, failure to specifically list safeguards shows that 

Congress did not intend the Commission to hear those cases. (Id. at 4 citing Marx v. Gen. 

Revenue Corp., --- U.S. ---, 133 S. Ct. 1166, 1181 (2013)). 

The Secretary is correct that a safeguard is not amongst the areas over which the 

Commission has explicit authority under Section 105(d). A safeguard is not a citation, order, or 

a violation. However, as noted supra, a safeguard forms the basis for a citation, order, or a civil 

penalty and therefore the Commission maintains the implied authority to consider it. 

36 FMSHRC Page 808
It should be noted that my authority to hear matters not explicitly stated in Section 105(d) 

is not only supported by relevant Commission case law, but also by the Secretary’s position in 

this case. In its brief, the Secretary argued that the validity of a safeguard is reviewable by the 

Commission (albeit after a citation or order is issued). (Secretary’s Brief at 3-6). Nowhere in 

the Mine Act does Congress explicitly grant the Commission the right to review the validity of a 

safeguard. The Commission has determined that this authority is implied based on the fact that 

citations and orders are written pursuant to safeguards. 

 If, as the Secretary argues, the Commission can only consider issues explicitly stated in 

Section 105(d), then the Commission must never have authority to consider the validity of a 

safeguard. Presumably if that were the case, the Commission could determine the validity of a 

citation or order issued pursuant to a safeguard (under the express grant of authority to do so in 

Section 105(d)) but lacks any authority to consider the validity of the underlying safeguard. This 

would analogous to the more common situation, when a citation issued with respect to a 

mandatory safety standard. In such a case the Commission may rule on the propriety of a 

citation or order but the validity of the underlying standard is reserved for the Federal Courts. 

However, as even the Secretary recognizes, the Commission does have authority to hear 

challenges to safeguards. Therefore, there must be implied authority outside the list in Section 

105(d). Further, I see no statutory reason for the proposition that this implied authority should be 

limited to situations where a citation or order has already been issued. The implied authority to 

consider a safeguard exists and therefore may be exercised now. 

The Secretary next argued that Commission precedent supports his interpretation that I 

have no authority to consider the validity of the safeguard at this time. (Secretary’s Brief at 8). 

However, in doing so the Secretary first concedes that the Commission has never directly 

addressed that issue. (Id.). Despite this, the Secretary notes that historically, the Commission 

has only considered the validity of a safeguard when a citation is being contested. (Id.). 

Specifically, the Secretary pointed to several decisions where ALJs summarily refused to review 

safeguards without subsequent citation or order. (Id. citing Beckley Coal Mining Co., 9 

FMSHRC 1454 (Aug. 1987)(ALJ Melick); Colorado Westmoreland, Inc., 10 FMSHRC 1236 

(Sep. 1988)(ALJ Morris); and Jim Walters Resources, Inc., 18 FMSHRC 380 (Mar. 1996)(ALJ 

Merlin). 

While I recognize that, as a general matter, Commission ALJs have historically waited 

for a citation or order to be issued pursuant to a safeguard before discussing the validity of that 

safeguard, I do not believe that there was a statutory necessity for this restraint. As noted supra, 

the implied authority to consider the validity of a safeguard exists at issuance. To the extent that 

Commission ALJs chose not to exercise their authority over challenges to safeguards, I believe 

they failed to fully appreciate the extent of the Commission’s authority in these matters. As a 

result, I do not find these cases to be persuasive. 

Finally, the Secretary argued that the Commission has implied that a review of a 

safeguard is not available until a citation has been issued. (Id. citing Southern Ohio Coal Co. 14 

FMSHRC at 13 (“An operator may challenge a safeguard’s validity in a contest or civil penalty 

proceeding arising from the issuance of a citation or order based on that safeguard.”)). 

36 FMSHRC Page 809
Contrary to the Secretary’s reading of Southern Ohio Coal Co., I do not believe that the 

Commission has implied that it did does have authority to hear challenges to the validity of 

safeguards at any time. In Southern Ohio Coal Co., the Commission stated that the validity of a 

safeguard is reached after a citation or order is issued, but it did not intend to make a sweeping 

declaration regarding its rights and powers. The section cited by the Secretary was merely dicta 

explaining how the issue generally arises in a portion of the decision discussing the burden of 

proof. No issue in that case turned on the timing of the challenge as an order had already been 

issued on the subject safeguard. 14 FMSHRC at 2-3. As the Secretary has conceded, the 

Commission has never decided on the issue of whether a citation or order is needed to challenge 

the validity of a safeguard (though perhaps it is time for the Commission to weigh in). Further, 

as noted supra, such authority exists at the time of issuance. I do not believe the Commission 

intended to deny the existence of that authority in a single sentence of a decision where the 

ultimate issue here was not in contention. 

 For the reasons set forth above, the Secretary’s Motion to Dismiss Contestant’s Notices 

of Contest is hereby DENIED. The parties are directed to mutually agree to a discovery and 

deposition schedule so that a hearing can be set. 

 /s/ William S. Steele 

 William S. Steele 

 Administrative Law Judge 

 

Distribution (Certified Mail) 

Benjamin Chaykin, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 

Wilson Boulevard, 22nd Floor, West, Arlington, VA 22209-2247 

Christopher D. Pence, Esq., & Eric L. Silkwood Esq., Hardy Pence, PLLC, 500 Lee Street East, 

Suite 701, PO Box 2548, Charleston, WV 25329-2548 

/tjb 

36 FMSHRC Page 810
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

 March 6, 2014 

 

 

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION

Before: Judge Lewis 

STATEMENT OF THE CASE

 This case is before me upon a complaint of discrimination filed by J. Don Arnold 

(“Arnold” or “Complainant”) against BHP Navajo Coal Company, and its successors (“BHP” or 

“Respondent”) pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 

(the “Act”), 30 U.S.C. § 815(c). 

 On November 7, 2013, Respondent entered its Motion for Summary Decision. In such, 

Respondent states that there are no genuine issues of material fact, and the real question as a 

matter of law is the narrow issue of whether holding an employee out of service while the 

alleged conduct is investigated with no delay in pay or benefits is an “adverse action” as 

contemplated by the statute. By motions dated November 26 and November 29, 2013, the 

Secretary requested that the original complaint be amended to include the fact that Arnold’s 

performance review was modified from “meets requirements” to “needs improvement,” and he 

was issued a written warning concerning the alleged conduct. The Secretary responded to 

Respondent’s Motion on December 16, 2013. He argues that Respondent’s Motion should be 

denied because the actions taken by Respondent do constitute adverse action, and Respondent’s 

motion should accordingly be denied. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on behalf 

 of J. DON ARNOLD, 

 Complainant 

 v. 

BHP NAVAJO COAL COMPANY, 

 AND ITS SUCCESSORS, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2013-541-D 

Case No. DENV-CD 2013-11 

Mine: Navajo Mine 

Mine ID: 29-00097 

36 FMSHRC Page 811
LAW 

According to 29 C.F.R. 2700.67(b), 

A motion for summary decision shall be granted only if the entire record, 

including the pleadings, depositions, answers to interrogatories, admissions, and 

affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a matter of law. 

The Commission “has long recognized that [ ] ‘summary decision is an extraordinary 

procedure,’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under 

which the Supreme Court has indicated that summary judgment is authorized only ‘upon proper 

showings of the lack of a genuine, triable issue of material fact.”’ Hanson Aggregates New York, 

Inc., 29 FMSHRC 4, 9 (Jan. 2007)(quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 

(July 1994)). In reviewing the record on summary judgment, the court must evaluate the 

evidence in “the light most favorable to...the party opposing the motion.” Hanson Aggregates at 

9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “drawn 

from the underlying facts contained in [the] materials [supporting the motion] must be viewed in 

the light most favorable to the party opposing the motions.” Hanson Aggregates, 29 FMSHRC at 

9 (quoting Unites States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

ISSUE

The issue is whether Respondent’s suspension of Complainant with no loss in pay or 

benefits during the completion of an investigation into Complainant’s alleged failure to follow 

safety procedures, Respondent’s issuance of a written warning regarding such, and/or 

Respondent’s modification of Complainant’s performance review from “meets requirement” to 

“needs improvement” singly or in combination constitute “material adverse action” raising a 

cognizable claim under § 105(c) of the Act. 

CONCLUSIONS OF LAW 

Under Section 105(c) of the Act, 

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner, representative of miners or applicant for 

employment in any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator’s agent, or the representative of miners at the coal or 

other mine of an alleged danger or safety or health violation in a coal or other 

mine, or because such miner, representative of miners or applicant for 

employment is subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101 or because such miner, representative 

36 FMSHRC Page 812
of miners or applicant for employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

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

prohibited discrimination by presenting evidence to support a conclusion that the individual 

engaged in protected activity and that the adverse action complained of was motivated in any 

part by that activity. Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom.; Consolidation Coal 

Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 817-818 (Apr. 1981). In 2006, the Supreme Court 

stated that the adverse action must be “material adverse action.” Burlington Northern & Santa 

Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). The employee “must show that a reasonable 

employee would have found the challenged action materially adverse, which in this context 

means it well might have dissuaded a reasonable worker from [engaging in protected activity].” 

Id. 

 The legislative history for 30 C.F.R. § 815(c) is clear in its intentions: 

If our national mine safety and health program is to be truly effective, miners will 

have to play an active part in the enforcement of the Act. The Committee is 

cognizant that if miners are to be encouraged to be active in matters of safety and 

health, they must be protected against any possible discrimination which they 

might suffer as a result of their participation. 

S. Rep. No. 95-181, at 35-36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-24 (1978). 

The undersigned also acknowledges that the chilling effect on employees cannot be presumed; 

rather, it must be made on a case-by-case basis taking into consideration both objective and 

subjective evidence. Secretary of Labor on behalf of Poddey v. Tanglewood, 18 FMSHRC 1315, 

1320-1321 (Aug 1996). Based on the law and circumstances, the undersigned finds that while 

any of the actions taken by Respondent in isolation may not have constituted material adverse 

action, the totality of these actions do. 

 Respondent argues that the Complainant suffered no material adverse action because 1) 

he suffered no termination of employment or economic loss, 2) the change in his evaluation did 

not affect his overall rating, and 3) the written warning given to him was minor. See

Respondent’s Motion for Summary Decision, p. 1; Respondent’s Supplemental Motion for 

Summary Judgement, p. 1-2; Respondent’s Reply in Support of Motion for Summary Decision, 

p. 3. First, while it is true that Complainant was neither terminated nor did he suffer any lapse in 

pay or benefits, Respondent fails to mention that Arnold was first suspended indefinitely without

pay pending an investigation. See Secretary’s Response to Motion for Summary Decision. It 

was not until later that Complainant learned that there would be no delay in his pay. Arnold 

36 FMSHRC Page 813
stated that although he was eventually paid, he was worried during the investigation that he 

would be unable to support his family. See Declaration of J. Don Arnold, ¶ 18. 

 Second, Respondent argues that the change in Arnold’s evaluation did not affect his 

overall rating and, regardless, the evaluations are not kept in an employee file; but, interestingly, 

Respondent was able to provide multiple performance evaluations in support of its case. See

Respondent’s Supplemental Motion for Summary Decision. This includes an evaluation done 

seven months prior to the one at issue here. Id. If Respondent is not keeping these forms for any 

personnel purposes, it begs the question of why Respondent would be able to produce it. 

 Finally, Respondent contends that the warning issued to Arnold was minor. However, 

the Secretary points out that the written warning is considered a “strike” against Arnold in 

Respondent’s progressive discipline system. Secy’s Resp., p. 10. This was confirmed by 

Arnold, who states that he feels like he has a target on his back. Dec. of Arnold, ¶ 11. Further, 

this “minor warning” will remain in Arnold’s personnel file throughout the remainder of his 

employment. Secy’s Resp., p. 10. Respondent conveniently fails to mention this. 

 Respondent also argues that this case should be dismissed in light of judicial economy 

since, it argues, Arnold has suffered no material adverse action. However, as Congress so 

eloquently stated, miners are the best means for effectively maintaining safety in the mines. 

Actions which serve to chill their participation must be closely evaluated. In his Declaration, 

Arnold states that other employees have told him that they will now think twice before making 

safety complaints. ¶ 17. Given all of the foregoing, the undersigned finds that Respondent’s 

action, in toto, may very well deter a reasonable employee from engaging in protected activity. 

ORDER

 It is hereby ORDERED that Respondent’s Motion for Summary Decision is DENIED. 

The parties are further ORDERED to PROVIDE a few mutually agreeable dates for hearing to 

the office of the undersigned within 20 days of the date of this Order. 

 /s/ John Kent Lewis 

 John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Karla Jackson Edwards, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S. Griffin 

Street, Suite 501, Dallas, TX 75202-5036 

J. Don Arnold, 3711 Highland View Drive, Farmington, NM 87402 

Charles W. Newcom, Esq., Sherman & Howard, LLC, 633 17th Street, Suite 3000, Denver, CO 

80202 

36 FMSHRC Page 814
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington, D.C. 20004

March 19, 2014 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. SE 2013-301 

 Petitioner : A.C. No. 01-00851-315187-01 

 : 

 : Docket No. SE 2013-352 

 v. : A.C. No. 01-00851-317727 

 : 

 : Docket No. SE 2013-368 

 : A.C. No. 01-00851-319550 

OAK GROVE RESOURCES, LLC, : 

 Respondent : Docket No. SE 2013-399 

 : A.C. No. 01-00851-320606-01 

 : 

 : Mine: Oak Grove Mine 

ORDER SCHEDULING BRIEFING

Before: Judge Feldman 

The hearing in the captioned civil penalty matters filed against Oak Grove Resources, 

LLC (“Oak Grove”) is currently scheduled for September 16, 2014, in Birmingham, Alabama. 

Docket No. SE 2013-368 concerns 104(d)(2) Order No. 8520664,1 issued on October 3, 2012. 

The order alleges a repeated flagrant violation under Section 110(b)(2) of the Federal Mine 

Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 820(b)(2), of the mandatory safety 

standard in section 75.400, that is attributable to high negligence.2 

 1

 Docket Nos. SE 2013-301, SE 2013-352 and SE 2013-399 have been consolidated with 

Docket No. SE 2013-368 because they contain citations that are relevant to Order No. 8520664. 

2

 Section 75.400 provides: 

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall 

be cleaned up and not be permitted to accumulate in active 

workings, or on diesel-powered and electric equipment therein. 

30 C.F.R. § 75.400. 

36 FMSHRC Page 815
Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be 

assessed a civil penalty of not more than $220,000.[3

] For purposes of 

the preceding sentence, the term “flagrant” with respect to a violation 

means a reckless or repeated failure to make reasonable efforts to 

eliminate a known violation of a mandatory health or safety standard 

that substantially and proximately caused, or reasonably could have 

been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2) (emphasis added). 

Although the Commission addressed questions concerning appropriate considerations for 

determining repeated flagrant violations in Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 2013), 

many issues concerning the application of section 110(b)(2) essentially are matters of first 

impression and remain unresolved. In Wolf Run, the Commission concluded that the plain 

language of section 110(b)(2) supports that past violative conduct may be considered in 

determining whether a cited condition represents a “repeated failure to make reasonable efforts 

to eliminate a known violation of a mandatory health or safety standard . . . .” 35 FMSHRC at 

541, citing 30 U.S.C. § 820(b)(2). However, the Commission did not address whether such 

previous violations must concern unwarrantable violations of the same mandatory standard, as 

well as the time period for the occurrence of such previous violations. The Commission had no 

basis for doing so as the Secretary did not clearly articulate during oral argument the required 

parameters concerning prior conduct.4

 

In Wolf Run, the Commission noted the Secretary’s obfuscation. The Commission stated: 

The Secretary’s interpretation [of a repeated flagrant violation] 

has changed several times during the course of this litigation . . . . 

[W]hile still before the judge, the Secretary broadened the 

proposed standard to include previous non-S&S and nonunwarrantable failure violations, and also seemingly narrowed 

the standard to require that at least some of the previous violations 

be “substantially similar” . . . . His interpretation before the 

Commission has evolved again . . . . [The Secretary’s briefing now 

includes a] “fail[ure] to make reasonable efforts to eliminate at 

least one previous violation prior to failing to make reasonable 

efforts to eliminate the violation alleged to be flagrant.” 

35 FMSHRC at 539 n. 5. The absence of a clearly articulated proffered standard for determining 

a repeated flagrant violation based on prior conduct precluded the Commission from addressing 

whether the Secretary’s application of section 110(b)(2) was a reasonable interpretation of its 

 3

 The maximum civil penalty for a violation that is not designated as flagrant is 

$70,000.00. 

30 U.S.C. § 820(a)(1). 

4

 In Wolf Run, the Commission remanded the proceeding to Commission ALJ Barbour. The 

parties now have advised Judge Barbour that they have reached a settlement agreement. 

36 FMSHRC Page 816
provisions, or whether the Secretary’s enforcement standard required a notice and comment 

rulemaking. 

 

The subject Order No. 8520664, alleging a repeated flagrant violation, states: 

Combustible material in the form of float coal dust and dry hard 

packed coal fines were allowed to accumulate on the roof, ribs, 

footwall, and belt structure of the Main North 3 belt entry. The 

hard packed coal fines were in contact with moving roller[s] on the 

belt line in multiple locations along the belt entry. The float coal 

dust existed on the roof, ribs, footwall, and belt structure from the 

Main North 3 Tail Pieces extending outby to crosscut 27. This is 

an approximate distance of 2100 feet. Due to the extensive amount 

of accumulations and that this belt is examined every shift this 

constitutes more than ordinary negligence and is an unwarrantable 

failure to comply with a mandatory health and safety standard. 

Standard 75.400 was cited 92 times in two years at mine 0100851 

(91 to the operator, 1 to a contractor). This violation is an 

unwarrantable failure to comply with a mandatory standard. 

 Even if the Secretary ultimately prevails with respect to the issues of the fact of the 

violation and the significant and substantial (“S&S”) and unwarrantable designations for the 

cited condition in Order No. 8520664, the hearing in this matter cannot proceed without 

determining the proper evidentiary requirements for demonstrating a repeated flagrant violation 

under the statutory provisions of section 110(b)(2). Determining the evidentiary requirements 

for a repeated flagrant violation will materially advance the disposition of these matters. 

Accordingly, IT IS ORDERED that the Secretary file a brief addressing in detail the following 

questions: 

(1) The degree of gravity is determined by the seriousness of the violation. 

Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citations omitted). 

Is the degree of gravity required for a flagrant designation under section 110(b)(2) 

of the Act, 30 U.S.C. § 820(b)(2), greater than the degree of gravity required for 

an S&S designation under section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1)? 

 The Commission long ago noted that the “Act’s overall enforcement scheme . . . 

provides for the use of increasingly severe sanctions for increasingly serious violations or 

operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (Apr. 1981).

Section 104(d)(1) provides, in pertinent part, that an S&S violation is any violation that 

“could significantly and substantially contribute to the cause and effect of a . . . mine 

safety or health hazard.” Section 110(b)(2) provides, in pertinent part, that a flagrant 

violation is “a known violation . . . that substantially and proximately caused, or 

reasonably could have been expected to cause, death or serious bodily injury.” 

36 FMSHRC Page 817
 The Secretary should address the distinction, if any, between the statutory 

language in sections 110(b)(2) and 104(d)(1). In addressing this issue, the Secretary 

should be mindful of the Commission’s S&S criteria in Mathies Coal Co., 6 FMSHRC 1, 

3-4 (Jan. 1984). The Commission noted the proper analysis under its third Mathies 

criterion concerning the likelihood of injury “requires that the hazard contributed to 

[by the violation] will result in an event in which there is an injury.” U.S. Steel Mining, 

6 FMSHRC 1834, 1836 (Aug. 1984), citing 3 FMSHRC at 3-4 (emphasis added). 

This analysis is based on a variety of changing conditions normally encountered during 

continued mining operations in the presence of an unabated hazard. U.S. Steel Mining, 

7 FMSHRC 1125, 1130 (Aug. 1985), citing 6 FMSHRC 1573, 1574 (July 1984). 

 In addressing the difference, if any, between the degrees of gravity associated with 

S&S and flagrant violations, the Secretary should address whether a flagrant violation 

must constitute a clear and present danger that requires more than considerations with 

respect to continued mining operations. In this regard, the Secretary should be mindful 

of the Commission’s holding in Musser Eng’g, Inc., 32 FMSHRC 1257 (Oct. 2010), 

discussing the indicia for an S&S designation: 

The test under the third element [of Mathies] is whether 

there is a reasonable likelihood that the hazard contributed 

to by the violation . . . will cause injury. The Secretary need 

not prove a reasonable likelihood that the violation itself 

will cause injury . . . . 

32 FMSHRC at 1280-81. 

(2) Is the degree of gravity the same for both reckless designations and for repeated 

designations under section 110(b)(2)?

 The Secretary should address whether his reliance on a history of previous 

violations as a predicate for a repeated flagrant violation relieves the Secretary’s burden 

of demonstrating that the subject violation was, or reasonably could have been expected 

to be, the substantial and proximate cause of death or serious bodily injury. 

(3) Can a repeated flagrant violation be attributed to less than a reckless degree of 

negligence in view of the statutory language requiring that it be a known violation

that will substantially and proximately cause death or serious bodily harm?

 In addressing this question, the Secretary should consider whether the inexcusable 

failure (as required for unwarrantability) to eliminate a known violation that can 

reasonably be expected to cause death or serious bodily injury can be attributable to less 

than a reckless disregard. See Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987) 

(defining unwarrantable conduct as “not justifiable” or “inexcusable”). 

36 FMSHRC Page 818
(4) What parameters does the Secretary propose for determining which violations serve 

as predicates for a repeated flagrant designation?

 In this matter, the Secretary alleges that the subject flagrant violation is based 

on a history of previous violations.5 The Secretary should address, with specificity, his 

proposed parameters for previous violations with respect to: whether such violations must 

be attributable to an unwarrantable failure; whether the violations must be of the same 

mandatory standard; whether settled violations lacking an evidentiary record with regard 

to their nature and extent are appropriate predicates; and the operative time period during 

which these prior violations must have occurred. 

(5) The provisions of section 110(b)(2) of the Act are essentially repeated in section 

100.5(e) of the Secretary’s implementing regulations. 30 C.F.R. § 100.5(e). The 

Commission traditionally resolves questions of deference by applying the two step 

test in Chevron v. Natural Res. Def. Council, 467 U.S. 837, 842-44 (1984). Are section 

110(b)(2) of the Act and section 100.5(e) of the regulations ambiguous, and if so, is 

the Secretary’s interpretation reasonable?

 The “flagrant” penalty assessment provision of section 110(b)(2) of the Mine Act 

was added by section 8(a) of the Mine Improvement and New Emergency Response Act 

of 2006 (“MINER Act”). Section 8(b) of the MINER Act required the Secretary to 

promulgate rules to implement the provision. Pub. L. No. 109-236, § 8, 120 Stat. 493 

(2006). On March 22, 2007, the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) published a final rule revising its penalty regulations and 

“implement[ing] the civil penalty provisions of the [MINER Act].” 72 Fed. Reg. 13592. 

Although the Secretary has been delegated with the authority to promulgate a regulation 

implementing section 110(b)(2), section 100.5(e) of the regulations simply reiterates the 

language of section 110(b)(2) of the Act. In addressing the appropriate level of deference 

to be accorded to the Secretary’s interpretation of section 100.5(e) given that it repeats 

the statutory language, Commission ALJ McCarthy has noted: 

An agency deserves no deference for an interpretation of its 

own regulation when the regulation merely parrots the 

language of the statute, without implementing it. Gonzales, 

supra, 546 U.S. at 257 (2006). In such cases, the agency is 

not using its expertise to interpret the law. It is merely 

copying or paraphrasing the statutory language. Id. at 258. 

 5

 Although the Secretary has identified three prior alleged generic unwarrantable failure 

violations of section 75.400, two of which have settled, the Secretary has not articulated why 

these violations were selected as predicates with regard to the nature and extent of the violations 

and the time period for their occurrence. 

36 FMSHRC Page 819
American Coal Co., 35 FMSHRC 2208, 2257 (July 30, 2013) (ALJ), citing Gonzales v. 

Oregon, 546 U.S. 243 (2006). As previously noted, in Wolf Run the Commission did not 

address the reasonableness of the Secretary’s criteria for considering prior conduct. 

Assuming section 110(b)(2) is ambiguous with respect to the necessary predicates for 

a repeated flagrant violation, the Secretary should address the reasonableness of his 

proffered interpretation. 

(6) Does implementation of the Secretary’s proffered criteria with respect to predicates 

for a repeated flagrant violation require a notice and comment rulemaking? 

 It is well established that a notice and comment rulemaking is required where 

a regulation is substantive as opposed to procedural. See Drummond Co., 14 FMSHRC 

661, 683-85 (May 1992) (noting that, pursuant to 5 U.S.C. § 553(b)(3)(A), substantive 

or legislative rules require advance notice and public comment, while interpretative 

rules, general statements of policy, or rules of agency procedure or practice do not). 

The Secretary should address whether his proffered basis for a repeated flagrant violation 

is substantive or procedural. 

 

ORDER

IT IS ORDERED that the Secretary shall provide a response to the above questions 

within 30 days from the date of this Order. IT IS FURTHER ORDERED that Oak Grove 

shall respond to the Secretary’s submission within 21 days thereafter. IT IS FURTHER 

ORDERED that the Secretary shall have leave to file a reply within 21 days of Oak Grove’s 

response. The parties should provide case law, regulatory provisions, and legislative history to 

support their respective positions. The parties may provide any relevant additional arguments 

outside the parameters of the above questions that they deem relevant. 

As a final matter, the MINER Act was promulgated in June 2006. Despite having had 

more than seven years to do so, to my knowledge the Secretary has yet to present a cogent and/or 

consistent interpretation of the requisite factors contemplated by section 110(b)(2) to establish a 

repeated flagrant violation. Consequently, requests for extension of this briefing schedule may 

not be favorably entertained. 

 /s/ Jerold Feldman 

 Jerold Feldman 

 Administrative Law Judge 

 

36 FMSHRC Page 820
Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

 

/tmw 

36 FMSHRC Page 821
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

March 25, 2013 

AMENDED ORDER DISMISSING 24 CITATIONS FOR FAILURE OF THE 

SECRETARY TO COMPLY WITH AN ORDER OF THE COURT1

Before: Judge Steele 

On the 14th day of January, 2014, Respondent filed a Motion for an Order to Show 

Cause, stating that the Secretary had been unresponsive to an Order of the Court. The Court 

had ordered the parties to confer on stipulations in a pending Motion for Partial Summary 

Decision, which concerned jurisdictional matters in 24 of 49 citations issued in Docket No. 

KENT 2013-185. 2

As noted in Respondent’s Motion for an Order to Show Cause, a telephone hearing was 

held on July 23, 2013, in which the Court informed the parties that more factual information 

was required in order to make a ruling on the pending Motion for Partial Summary Decision. 

After discussion of the issues, the parties agreed that perhaps certain joint stipulations could be 

submitted that would assist the Court in the determination of essential facts. Based on this 

agreement, the Court ordered the parties to confer and submit joint stipulations within 45 days, 

or by September 6, 2013. 

1 This Order has been amended to list the 24 of 49 citations that were referenced in the 

March 24, 2014 order. 

2

 These citations are 8509488, 8509500, 8509756, 8509489, 8509759, 8509757, 

8509751, 8509490, 8509752, 8509491, 8509760, 8509758, 8509753, 8509492, 8509493, 

8509754, 8509494, 8509495, 8509496, 8509497, 8509761, 8509498, 8509755, and 8509499. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

ARMSTRONG COAL CO, INC., 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2013-185 

A.C. No. 15-19358-303177 

Mine: Parkway Mine 

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The record does not indicate that the Secretary made any attempt to confer with the Respondent 

within the timeframe ordered. The Order was issued in the summer. Summer became autumn, 

and autumn turned into winter. The Secretary remained unresponsive. 

Finally, Respondent filed a Motion for an Order to Show Cause on January 14, 2014. In 

his response, the Secretary stated, incorrectly, that Respondent’s Motion was predicated on the 

Secretary’s refusal to agree to stipulations proffered by Respondent, and admitted that there was 

a delay in notifying the Court regarding “the acceptance, or not, of these proposed 

stipulations...” The Secretary stated in his response that only two of the 10 proposed 

stipulations of Respondent were acceptable and again acknowledged the delay, stating that it 

“takes responsibility for the delay.” 

On March 11, 2014, the Court issued an Order to Show Cause, directing the Secretary to 

show good cause within 11 days for the reason there was a failure to comply with the 45-day 

deadline. The Secretary’s only response to this Order was a retransmission of the response to 

Respondent’s Motion for an Order to Show Cause. There has yet to be an explanation to the 

Court as to why there has been no compliance. 

In a prehearing Order, dated February 13, 2013, the parties were obligated to 

communicate with each other in good faith regarding substantive issues. The Order stated that 

failure to do so was grounds for dismissal of the offending party’s case. Moreover, 29 C.F.R. § 

2700.1(b) provides that a judge may be guided by the Federal Rules of Civil Procedure (FRCP) 

on procedural matters not regulated by the Commission’s rules. Rule 41(b) of the FRCP 

provides for the involuntary dismissal of the action, or any claim, where the plaintiff (here the 

Secretary) has failed to comply with a court order. 

It is therefore ORDERED that the 24 citations which are the subject of Respondent’s 

Motion for Order to Show Cause be dismissed for failure to comply with the Court’s Order to 

Confer regarding stipulations. 

 /s/ William S. Steele 

William S. Steele 

Administrative Law Judge 

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Distribution: 

Thomas A. Grooms, Office of the Solicitor, U.S. Dept of Labor, 618 Church St., Suite 230, 

Nashville, TN 37219 

Mason L. Miller, Miller Wells PLLC, 300 E. Main St., Suite 360, Lexington, KY 40507 

Adam K. Spease, Miller Wells PLLC, 710 W. Main St., 4th Floor, Louisville, KY 40202 

Daniel Z. Zaluski, Armstrong Coal Co., Inc., 407 Brown Rd., Madisonville, KY 42431 

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