OCTOBER 2004 

COMMISSION DECISIONS AND ORDERS 

10-04-2004 AJ Crushing & Concrete, U.,C 

10-06-2004 Darwin Stratton & Son, Inc. 

10-06-2004 De Wayne Herren 

10-07-2004 JS Sand & Gravel, Inc. 

10-12-2004 Prairie Materials Sales Inc. 

10-29-2004 Martin Marietta Aggregates 

10-29-2004 Lammi Sand & Rock 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-07-2004 APAC-Mississippi, Inc. 

10-18-2004 RAG Cumberland Resources, L.P. 

10-25-2004 Ronald R. Cole v. Newmont Midas Operation 

ADMINISTRATIVE LAW J{JDGE ORDERS 

10-07-2004 Jim Walter Resources, Inc. 

10-14-2004 RAG Cumberland Resources, LP 

10-14-2004 Jim Walter Resources 

i 

WEST 2004-405-M 

WEST 2001-528-M 

WEST 2004-311-M 

YORK 2004-50-M 

LAKE 2004-94-M 

CENT 2004-234-M 

WEST 2004-502-M 

SE 2004-83-M 

PENN 2000-181-R 

WEST 2004-442-DM 

SE 2003-150-R 

PENN 2000-181-R 

SE 2003-160 

Pg. 783 

Pg. 787 

Pg. 791 

Pg. 795 

Pg.800 

Pg. 803 

Pg. 807 

Pg.811 

Pg.816 

Pg.818 

Pg.823 

Pg.827 

Pg.830 

OCTOBER 2004 

Review was granted in the following case during the month of October: 

Secretary of Labor, MSHA v. Elk Run Coal Company, Docket No.-WEVA 2003-149. 

(Judge Weisberger, September 13, 2004) 

No case was filed in which Review was denied during the month of October 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

October 4, 2004 

Docket No. WEST 2004-405-M 

A.C. No. 45-03490-27068 

AJ CRUSHING & CONCRETE, I.LC. 

Docket No. WEST 2004-406-M 

A.C. No. 45-03490-24530 

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

ORDER 

BY THE CO:rv1MISSION: 

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

§ 801 et seq. (1994) ("Mine Act"). 1 On July 19, 2004, the Commission received from AJ 

Crushing & Concrete, I.LC. ("AJ Crushing") correspondence which we construe as a motion to 

reopen two penalty assessments that had become final orders of the Commission pursuant to 

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

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

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

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

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

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

two proposed assessments (A.C. No. 45-03490-27068 and A.C. No. 45-03490-24530) to AJ 

Crushing. In its motion, AJ Crushing states that the 30 days to contest the proposed assessments 

has passed and it asks the Commission to waive the 30 day period and review the assessments. 

Mot. No documentation is attached to AJ Crushing' s motion. The Commission received a 

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

consolidate docket numbers WEST 2004-405-M and WEST 2004-406-M, both captioned AJ 

Crushing & Concrete, LLC. and both involving similar issues. 29 C.F.R. § 2700.12. 

26 FMSHRC 783 
response from the Secretary of Labor stating that, because AJ Crushing has identified no grounds 

for reopening the penalty assessments, she requires additional information before she can express 

her position on the operator's motion. Sec'y Resp. at 1-2. 

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

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

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

reopen final section l05(a) orders, the Commission has found guidance in Rule 60(b) of the 

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

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

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

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

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

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

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

26 FMSHRC 784 
On the basis of the present record, we are unable to evaluate the merits of AJ Crushing' s 

position. We hereby remand this matter to the Chief Administrative Law Judge for a 

determination of whether good cause exists for AJ Crushing' s failure to timely contest the 

penalty proposals and whether relief from the final orders should be granted. If it is determined 

that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. 

26 FMSHRC 785 
Distribution 

Diane F. Shiker, Office Manager 

AJ Crushing & Concrete, l.LC 

P.O. Box 5280 

Benton City, WA 99320 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Myra James 

Office of Civil Penalty Compliance 

U.S. Department of Labor, MSHA 

1100 Wilson Boulevard, 24th Floor West 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

26 FMSHRC 786 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY ANP HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 6, 2004 

Docket Nos. WEST 2001-528-M 

WEST 2001-538-M 

WEST 2001-557-M 

DARWIN STRATTON & SON, INC. 

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

ORDER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On April 29, 2002, Administrative Law 

Judge Richard Manning issued a decision, concluding in part that the Department of Labor's 

Mine Safety and Health Administration ("MSHA") has jurisdiction over the Airport Pit operated 

by Darwin Stratton & Son, Inc. ("Darwin Stratton") and that Darwin Stratton violated section 

103(a) of the Mine Act, 30 U.S.C. § 813(a), by refusing an authorized MSHA representative 

entry to its pit. 24 FMSHRC 403, 407-09 (April 2002) (ALT). 

The judge's jurisdiction in this matter terminated when he issued his decision on April 

29, 2002. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules, 

relief from a judge's decision may be sought by filing a petition for discretionary review within 

30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Darwin Stratton did not 

file a petition for discretionary review, nor did the Commission direct review sua sponte. 30 

U.S.C. §§ 823(d)(2)(A) and (B). Thus, the judge's decision became a final decision of the 

Commission on May 29, 2002. 30 U.S.C. § 823(d)(l). 

On August 26, 2002, the Commission received from Darwin Stratton a motion to reopen 

Judge Manning's decision under Fed. R. Civ. P. 60(b )(2). 1 In evaluating requests to reopen final 

1 Rule 60(b) provides in pertinent part that a party may be relieved from a final order by 

reason of "newly discovered evidence which by due diligence could not have been discovered in 

26 FMSHRC 787 
orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil 

Procedure. See 29 C.F.R. § 2700.l(b) ("the Commission and its judges shall be guided so far as 

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

787 (May 1993). 

In its motion, Darwin Stratton states that it has "recently been made aware 

of . . . documentation and information and could not [have] brought this evidence before this 

Administrative Court before now." DS Mot. at 2. Darwin Stratton does not, however, describe 

or include copies of any newly discovered evidence in the motion. Rather, Darwin Stratton 

makes arguments relating to legal issues that were before the judge. Id. at 2-19. On September 

27, 2002, the Secretary of Labor filed a motion opposing Darwin Stratton's request, asserting that 

the operator had failed to meet the requirements of Rule 60(b )(2) because it does not provide any 

newly discovered evidence to support its request. S. Opp'n at 7-10.2 

We conclude that Darwin Stratton's motion of August 26, 2002, does not satisfy the 

requirements of Rule 60(b )(2). The Commission has recognized that in order to obtain relief 

under Rule 60(b )(2), the movant must establish that newly discovered evidence "was in exist~nce 

at the time of trial but not in the movant's possession; that even by exercising due diligence, the 

movant could not have obtained the evidence at the time of trial orfo time to move for a new 

trial ... ; and that the evidence is not merely cumulative and would change the result." Bruno v. 

Cyprus Plateau Mining Corp., 11FMSHRC150, 153 (Feb. 1989); see also Sec'y of Labor on 

behalf of Baier v. Durango Gravel, 21 FMSHRC 1079, 1079-80 (Oct. 1999) (citations omitted) 

("the newly discovered evidence must have existed at the time of trial or concern facts that were 

in existence at time of trial, and must be sufficiently significant that it is likely to change the 

outcome of the case''). Darwin Stratton does not describe or set forth copies of any newly 

discovered evidence; it does not explain why, using due diligence, such evidence could not have 

been brought before the judge; nor does it describe newly discovered evidence that would have 

changed the outcome of the proceedings. See Harvey v. Mingo Logan Coal Co., 24 FMSHRC 

699, 699-701 (July 2002) (denying miner's request to reopen under Rule 60(b )(2) because miner 

did not provide newly discovered evidence that would change outcome of decision). 

Accordingly, we deny Darwin Stratton's August 26, 2002, request for relief under Rule 60(b)(2). 

time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b)(2). 

2 On May 14, 2003, the Commission received from Darwin Stratton a document making 

allegations of judicial misconduct. The Commission has investigated these allegations and found 

them to be baseless. 

26 FMSHRC 788 
For the foregoing reasons, we deny Darwin Stratton's request for relief under Rule 60(b). 

26 FMSHRC 789 
Distribution 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor 

Arlington, VA 22203 

Clayton Stratton, Vice President 

Darwin Stratton & Son, Inc. 

720 W. State Street, Suite 71-7 

Hurricane, UT 84737 

Johnpartick Morgan 

General Post Office 

Fredonia, AZ 86022 

Administrative Law Judge Richard Manning 

Federal Mine Safety and Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, CO 80204-3582 

26 FMSHRC 790 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADrvn:NISTRATION (MSHA) 

v. 

DeW A YNE HERREN 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

October 6, 2004 

Docket No. WEST 2004-311-M 

A.C. No. 48-01497-06604 A 

BEFORE: Duffy, Chai1man; Jordan, Suboleski, and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (1994) ("Mine Act"). On May 17, 2004, the Commission received from De Wayne 

Herren a Request to Reopen Contest of Penalty Assessment for violations of section 110( c) of the 

Mine Act, 30 U.S.C. § 820(c), that had become final orders of the Commission pursuant to 

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

Under section 105(a) of the Mine Act and the Commission's Procedural Rules, an 

individual charged with a violation under section llO(c) has 30 days following receipt of the 

Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or 

she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27. 

On August 18, 2003, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment (A.C. No. 48-01497-06604 A) to Herren. In 

the request, Herren asserts that he did not defend against the proposed penalty because of 

inadvertence, mistake and/or misunderstanding. Mot. at 2. In his affidavit supporting the 

request, Herren states that he "had never been involved in anything like this before" and now that 

he has an attorney and understands the process, he would like an opportunity to present his case. 

26 FMSHRC 791 
Aff. at 1-2. The Secretary filed a response to the Herren's request, seeking a remand with the 

instruction that both parties have an opportunity to present relevant evidence and legal arguments 

on whether Herren's request to reopen this proceeding should be granted. Sec'y Resp. at 2-3. 

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

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

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

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

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

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Com.mission 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). 

26 FMSHRC 792 
Having reviewed Herren' s motion and the Secretary's response, in the interests of justice, 

we remand this matter to the Chief Administrative Law Judge for a determination of whether 

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

from the final order should be granted. If it is determined that such relief is appropriate, this case 

shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 

2700. 

26 FMSHRC 793 
Distribution 

Frank D. Neville, Esq. 

Williams, Porter, Day & Neville, P.C. 

159 North Wolcott, Suite 400 

P.O. Box 10700 

Casper, WY 82602 

W . Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22203 

Myra James 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

26 FMSHRC 794 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

J S SAND & GRAVEL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

October 7, 2004 

Docket No. YORK 2004-50-M 

A.C. No. 30-03325-05501 

Docket No. YORK 2004-51-M 

A.C. No. 30-03325-05502 

Docket No. YORK 2004-52-M 

A.C. No. 30-03325-05503 

Docket No. YORK 2004-53-M 

A.C. No. 30-03325-08141 

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

ORDER 

BY: Duffy, Chairman; Suboleski, and Young, Commissioners 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2000) ("Mine Act"). 1 On June 29, 2004, the Commission received from JS Sand & Gravel, 

Inc. ("JSSG") a letter from its president which included a request that the Commission reopen four 

penalty assessments that had become final orders of the Commission pursuant to section 105(a) of 

the Mine Act, 30 U.S.C. § 815(a). On July 8, 2004, the Secretary of Labor filed a Response to 

Request to Reopen Penalty Assessments. 

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

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

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

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

consolidate docket numbers YORK 2004-50-M, YORK 2004-51-M, YORK 2004-52-M, and 

YORK 2004-53-M, all captioned JS Sand & Gravel, Inc., and all involving similar procedural 

issues. 29 C.F.R. § 2700.12. 

26 FMSHRC 795 
a final order of the Commission. 30 U.S.C. § 815(a). In its pet~tion, JSSG gives no reason for its 

failure to contest any of the four penalty assessments. 

A. Docket Nos. YORK 2004-50-M. YORK 2004-51-M. and YORK 2004-52-M 

Based on the Secretary's submission, MSHA issued proposed assessment A.C. No. 

30-03325-05501 (YORK 2004-50-M) to JSSG on May 11, 2001, JSSG received the proposed 

assessment on May 17, 2001, and it became a final order on June 22, 2001. S. Resp. at 1 & Attach. 

A. Similarly, MSHA issued proposed assessment A.C. No. 30-03325-05502 (YORK 2004-51-M) 

to· JSSG on August 30, 2002, JSSG received it on September 6, 2002, and it became a final order on 

October 11, 2002. Id. at 2 & Attach. B. In addition, MSHA issued proposed assessment A.C. No. 

30-03325-05503 (YORK 2004-52-M) to JSSG on January 16, 2003, JSSG received it on January 

24, 2003, and it became a final order on February 27, 2003. Id. at 2 & Attach. C. JSSG provides 

no reason in its request to reopen why it did not timely contest any of the three assessments. 

The Secretary opposes reopening all three proposed assessments because JSSG's requests 

were filed approximately three years, 20 months, and 16 months, respectively, after the assessments 

became final. S. Resp. at 1-2. The Secretary attached to her response copies of the proposed 

assessments, signed return receipt ve1ification cards indicating JSSG had received the proposed 

assessments, and MSHA's delinquent payment notice for each assessment. Id., Attach. A to C. 

JSSG did not reply to the Secretary's response. 

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

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

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

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

of Civil Procedure. See 29 C.F.R. § 2700.l(b) ("the Commission and its judges shall be guided so 

far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. For instance, 

relief from a final Commission judgment or order is available to a party under Rule 60(b)(l) in 

circumstances such as mistake, inadvertence, or excusable neglect. We have 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 to a penalty petition, the case may be reopened and appropriate proceedings on the 

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

However, under Rule 60(b) any motion for relief must be made within a reasona~le time, and 

in the case of mistake, inadvertence, or excusable neglect not more than one year after the order was 

entered. Fed. R. Civ. P. 60(b). Here, JSSG has requested reopening of the three proposed 

assessments more than one year after each assessment became a final Commission order, and has 

provided no explanation of why it never responded to the correspondence it received from MSHA. 

Consequently, we deny JSSG' s motion for relief from the final orders in Docket Nos. YORK 2004-

50-M, YORK 2004-51-M, and YORK 2004-52-M. 

26 FMSHRC 796 
B. Docket No. YORK 2004-53-M 

JSSG also requests the Commission to reopen another proposed assessment, A.C. No. 30-

03325-08141 (YORK 2004-53-M). According to JSSG, that assessment issued on September 11, 

2003. The Secretary responds that because JSSG identifies no grounds for requesting reopening of 

the assessment, the Commission should direct JSSG to provide a detailed explanation of why it 

believes circumstances warrant reopening. S. Resp. at 3. 

JSSG has provided no explanation for its failure to timely contest the proposed assessment. 

On the basis of the present record, we are thus unable to evaluate the merits of JSSG' s request to 

reopen. We hereby remand this matter to the Chief Administrative Law Judge for a determination 

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

relief from the final order should be granted. If it is determined that such relief is appropriate, this 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 

2700. 

Accordingly, we deny JSSG's request to reopen the penalty assessments in Docket Nos. 

YORK 2004-50-M, YORK 2004-51-M, and YORK 2004-52-M and the proceedings are hereby 

dismissed, and we remand Docket No. YORK 2004-53-M for further proceedings as appropriate. 

26 FMSHRC 797 
Commissioner Jordan, concurring in part and dissenting in part:. 

I agree with the majority's decision to deny JSSG' s request to reopen the penalty assessments 

in Docket Nos. YORK 2004-50-M, YORK 2004-51-M, and YORK 2004-52-M. However, I would 

also deny the operator's request for relief from the final order in YORK 2004-53-M. Pursuant to 

Rule 60(b) of the Federal Rules of Civil Procedure, we have previously afforded a party relief from 

a final order on the basis of inadvertence or mistake. Slip op. at 2. However, JSSG has failed to 

provide any explanation to justify its failure to timely contest the proposed penalty assessment. See 

Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen final 

Commission order where operator failed to set forth grounds justifying relief). I also note that this 

matter involves four proposed penalty assessments issued between May 22, 2001 and September 11, 

2003 which the operator failed to timely contest. Consequently, I respectfully dissent. 

MaIYlh ~?~ JOr: Commissi ~ 

26 FMSHRC 798 
Distribution 

Jeff DeFranco, President 

J S Sand & Gravel, Inc. 

139 C Peconic A venue 

Medford, NY 11763 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

26 FMSHRC 799 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

October 12. 2004 

Docket No. LAKE 2004-94-M 

A.C. No. 11-02972-21590 

PRAIRIE MATERIALS SALES INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On September 27, 2004, the Commission received from 

Prairie Materials Sales Inc. ("Prairie Materials") a letter seeking review of an order' of Chief 

Administrative Law Judge Robert J. Lesnick entering a default judgment for the Secretary of 

Labor in this case. 

The Chief Judge's jurisdiction in this matter terminated when his default order was issued 

on September 2, 2004. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

procedural rules, relief from a judge's decision may be sought by filing a petition for review 

within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We construe the 

letter from Prairie Materials to be a timely filed petition for discretionary review. 

On July 21, 2004, Chief Judge Lesnick issued a show cause order to Prairie Materials 

stating that it had failed to file an answer to a petition for penalty assessment sent to it by the 

Secretary of Labor on May 13, 2004, and that Prairie Materials would be found in default if it did 

not file an answer or show good cause for not doing so within 30 days of the order. On 

September 2, 2004, Chief Judge Lesnick issued an order finding that Prairie Materials had failed 

to respond to the show cause order and entering a judgment by default for the Secretary. 

26 FMSHRC 800 
On September 27, 2004, the Commission received a letter from Dave Mashek, the Safety 

Director of Prairie Materials, seeking review of the Chief Judge's default order. The letter did 

not provide reasons regarding why the company had not answered the petition nor responded to 

the show cause order but instead briefly discussed the merits of the citation in question. In her 

response to the letter, the Secretary opposed the granting o~ Prairie Materials' petition for 

discretionary review because it does not address the basis for the Chief Judge's default order. 

Because the petition for discretionary review filed by Prairie Materials does not address 

the validity of the Chief Judge's default order nor provide any reasons why the default order 

should be vacated, 1 we hereby deny the petition. 

1 The Commission has 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). See also Rule 60(b) of the Federal Rules of Civil Procedure. 

If Prairie Materials can justify its failure to answer the petition for penalty assessment and to 

respond to the show cause order, it may submit a request to the Commission, with supporting 

documentation, asking it to reopen this case. · 

26 FMSHRC 801 
Distribution 

Mr. Dave Mashek, Safety Director 

Prairie Material Sales, Inc. 

7601 W. 79th Street 

P.O. Box 1123 

Bridgeview, IL 60455 

W. Christian Schumann, Esq. 

Counsel, Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001 -202 1 

26 FMSHRC 802 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 29, 2004 · 

Docket No. CENT 2004-234-M 

A.C. No. 14-01506-32400 

MARTIN MARIETTA AGGREGATES 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On September 3, 2004, the Commission received from 

Martin Marietta Aggregates ("Martin Marietta") a motion to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

proposed assessment (A.C. No. 14-01506-32400) to Martin Marietta on July 19, 2004. In its 

motion, Martin Marietta states that, due to its internal routing of the assessment form, its counsel 

did not receive a copy of the form until September 1, 2004, past the 30-day deadline to contest 

the assessment. Mot. at 1. Martin Marietta seeks a reopening of the penalty assessment because 

of its mistake or inadvertence. Mot. at 2. The Secretary of Labor has filed a response, stating 

that she does not oppose the request to reopen. Sec'y Resp. 

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

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

26 FMSHRC 803 
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

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

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

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

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

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

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

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

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

26 FMSHRC 804 
On the basis of the present record, we are unable to evaluate the merits of Martin 

Marietta's position. We hereby remand this matter to the Chief Administrative Law Judge for a 

determination of whether good cause exists for Martin Marietta's failure to timely contest the 

penalty proposal and whether relief from the final order shquld be granted. If it is determined 

that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. 

26 FMSHRC 805 
Distribution 

Laura E. Beverage, Esq. 

Jackson & Kelly, Pl.LC 

1099 181h Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

26 FMSHRC 806 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD:MINISTRA TION (MSHA) 

V. 

LAMMI SAND & ROCK 

601 NEW JERSEY AVENUE, NW 

SUJTE9500 

WASHINGTON, DC 20001 

October 29, 2004 

Docket No. WEST 2004-502-M 

A.C. No. 35-03117-18572 

Docket No. WEST 2004-503-M 

A.C. No. 35-03117-23217 

Docket No. WEST 2004-504-M 

A.C. No. 35-03117-12325 

Docket No. WEST 2004-505-M 

A.C. No. 35-03117-28447 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2000) ("Mine Act"). 1 On September 27, 2004, the Commission received from Lammi Sand 

& Rock ("Lammi") a motion to set aside defaults in four penalty assessments that had become final 

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

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

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

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

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

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

consolidate docket numbers WEST 2004-502-M, WEST 2004-503-M, WEST 2004-504-M, and 

WEST 2004-505-M, all captioned Lammi Sand and Rock and all involving similar procedural 

issues. 29 C.F.R. § 2700.12. 

26 FMSHRC 807 
The Department of Labor's Mine Safety and Health Admi~stration issued the four proposed 

assessments to Lammi between November 4, 2003, and June 8, 2004. In its motion, Lammi states 

that the four assessments are related to two earlier assessments which Lammi did properly contest, 

Docket Nos. WEST 2004-206-M (A.C. No. 35-03317-16754) and WEST 2004-319-M (A.C. No. 

35-03317-25938). Mot., Aff. at 1. The six assessments are for 51 citations that were issued as a 

result of the same inspection. Lammi seeks reopening of the four uncontested penalty assessments 

because it inadvertently failed to contest the proposed penalties, and to have the six assessments 

decided together. Mot., Aff. at 1-2. The Secretary of Labor has filed a response, stating that she 

does not oppose the request to reopen the four assessments. Sec'y Resp. 

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

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

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

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

of Civil Procedure under which, for example, a party could be entitled to relief from a final order of 

the Commission on the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) ("the 

Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil 

Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a harsh remedy and 

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

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

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

26 FMSHRC 808 
On the basis of the present record, we are unable to evaluate the merits of Lammi' s position. 

We hereby remand this matter to the Chief Adrninistrati ve Law Judge for a determination of whether 

good cause exists for Lammi' s failure to timely contest the four penalty assessments and whether 

relief from the final orders should be granted. If it is determined that such relief is appropriate, this 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 

2700. 

26 FMSHRC 809 
Distribution 

Steven D. Gerttula 

Attorney at Law 

416 Bond Street 

Asortia, OR 97103 

W. Christian Schumann,.Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

26 FMSHRC 810 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001 -2021 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

APAC-MISSISSIPPI, INC., 

Respondent. 

October 7, 2004 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2004-83-M 

A.C. No. 22-00672-16273 

Robinson Pit 

DECISION 

Appearances: Gwen Y. Anderson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Atlanta, GA; for the Secretary. 

Julie K. Hackworth, Esq., AP AC-Mississippi, Inc., 50 E. River Center Blvd., P.O. 

Box 391, Covington, KY 41012; for the Respondent. 

Before: Judge Weisberger 

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (Secretary) pursuant to Section 105 of the Federal Mine Safety and Health Act 

of 1977 (the Act) alleging violations by AP AC Mississippi, Inc., (AP AC) of 30 C.F.R. 

§§ 56.11012 and 56.9300(a). In addition, APAC challenges the issuance of an order under 

Section 104(b) of the Act, relating to the alleged violation of Section 56.9300, supra. Pursuant to 

notice, this case was scheduled and heard in Jackson, Mississippi on August 31, 2004. 

I. Citation No. 6101104 

Citation No. 6101104 asserts that a walkway on a floating dredge had not been provided 

with railings to prevent a person from falling into the water when traversing the walkway to 

check the dredge cutter head. The citation alleges a violation of 30 C.F.R. §56.11012. 

· In support of the violation, the Secretary called as a witness, Fred Poss, AP AC' s 

Superintendent for three mines, including the operation at issue. He indicated that a metallic 

horizontal platform (ladder) attached to the dredge pump is in use daily. Poss conceded that 

employees do walk on the platform to inspect the cutter head. He ~ndicated that this can occur 

twice a day, but on an average this occurs three to six times a year. According to Poss, in order 

to perform maintenance on the pump, the platform must be raised, which necessitates moving the 

dredge from the lake to the shore. He also indicated that maintenance is not performed when the 

dredge is on the lake. 

26 FMSHRC 811 
MSHA Inspector Delilah Tessaro, testified that when she inspected the subject facility on 

November 5, 2003, she spoke to the dredge operator and he referred to the ladder as a walkway. 

According to Tessaro, the operator told her that anytime he needed to check the cutter head he 

would use the ladder. However, she conceded that the operator did not tell her specifically how 

often he used the walkway to access the cutter heads. 

After the Secretary rested, AP AC rested, and made a motion for a directed verdict. After 

hearing argument on the motion, the motion was granted. The bench decision on the motion is 

set forth below. 

Because both parties rested, the entire record must be reviewed to see if 

the Secretary has met its burden of establishing a violation of Section 56.11012, 

supra, as alleged in the citation at issue. 

Section 56.11012, supra, requires protection by railings, barriers, or covers 

in areas where there are openings above, below, or near travelways. Travel way is 

defined in Section 56.2 as "a passage, walk, or way regularly used and designated 

for persons to go from one place to another." The key phrase here is "regularly 

used." 

At best, the hearsay statements that the operator made to the inspector that 

he goes on the walkway anytime the cable or cutter have to be maintained, raises 

an inference that the platform at issue is "regularly used." However, I find this 

inference, based on hearsay, to be outweighed by Poss' testimony, based on his 

personal knowledge, that on an average the ladder is used to access the cutter head 

four to six times a year. There is not any other evidence in the record as to how 

often the platform is used to access the cutter heads. If the dredge operator had 

been called as a witness, perhaps he could have testified in more detail, based on 

his personal knowledge, as to how often he actually uses the ladder to do 

maintenance work. However, the Secretary chose not to call him. 

Based on the record before me, I find that the Secretary's evidence falls 

short of establishing that the cited area was a travelway. The weight of the 

evidence does not establish that the ladder was regularly used and designated for 

persons to go from one place to another. Accordingly, it has not been established 

by the Secretary that APAC violated Section 56.11012, supra. Therefore, 

AP AC' s, motion is granted. 

II. Citation No. 6101107 

AP AC operates a sand and gravel pit. Trucks regularly enter the mine, travel north to the 

pit on a two-way thoroughfare, and return on the same road to exit the mine. Trucks that are 

loaded with materials from the pit, leave the pit along this thoroughfare, then divert west to a dirt 

26 FMSHRC 812 
covered "ramp" th.at is not elevated, and extends approximately 100 to 120 feet to a scale which 

is in a direct line with the ramp. 

The scale is a metal surface 10 feet wide, and approximately 60 feet in length. 1 The scale 

is in direct line of the ramp and 28 to 30 inches above the ramp. On the date cited there was a 

unguarded edge running along the length of the scale that extended approximately 30 feet. Tire 

tracks were observed approximately four inches from the edge of the scale. 

After trucks stop on the scale and are weighted,2 they continue to travel in a direct line 

down a similar ramp 100 to 120 feet in length, until it joins a two way road. The trucks then 

travel south along the road to exit the mine. 3 The parties stipulated, as pertinent, as follows: 

xxx 

10. Robinson Pit Mine began operations in October 1993. 

11. Regarding Citation No. 6101107, the over the road truck scale had 

three openings which did not have berms or guardrails. 

12. The truck scale had three unguarded openings which were 

approximately 24", 10' and 30'. 

13. At various points on the bank of the truck scale, the unguarded 

openings had a drop-off ranging from approximately 37" to 42". 

14. Inspector Tessaro observed tire prints four inches from the edge of 

the scale. 

15. The scale is used daily. 

xxx 

APAC was cited for violating Section 56.9300(a), supra, which provides, as pertinent, 

that berms or guardrails shall be provided" ... on the banks of roadways where a drop-off exists 

of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment." 

1

The trucks that travel on the scale are approximately 50 feet lol)g, and 8 feet wide. 

2Tbe scale is used by trucks 15 to 20 times a day. At times up to 50 trucks a day travel on the 

scale to get weighed. 

3Trucks entering the mine empty for the first time take a similar route so the empty truck can be 

weighed. 

26 FMSHRC 813 
(Emphasis added.) 

The main issue in this case is whether the cited scale is a roadway. The parties presented 

argument on this issue and a decision was rendered at the hearing, holding that, based upon the 

common meaning of a roadway, the scale is considered part of a roadway. That decision, is set 

forth below, with the exception of corrections of matters not of substance, and the addition of 

wording that had been inadvertently omitted. 

I have not been referred by counsel to any authority, or case law that 

established a precedent as to whether the scale in this case is to be considered a 

roadway. I haven't found any cases. Also, Part 56 the Code of Federal 

Regulations, does not define roadway. Hence, I place reliance on the common 

meaning of the term "roadway" as set forth in the Webster's Third New 

International Dictionary, (1993 ed.). Webster's defines roadway as "specif: 

"[t]he part of a road over which the vehicular traffic travels." (See Pappy's Sand 

& Gravel, 20 FMSHRC 647, 651) (June 1998). Webster's defines "road" as 

pertinent, as follows:" ... 3(c): the part of a thoroughfare over which vehicular 

traffic moves .... " Webster's goes on to define "thoroughfare" as pertinent as 

follows: "l: a way or place through which there is passing .... " 

In arguing that the scale is not a roadway, AP AC points out that these 

definitions denote a route going from point A to point B. In this connection, 

AP AC argues that the scale, a piece of equipment used to weigh trucks, is a 

destination and not part of a route the pit to the mine exit. AP AC, in essence, 

refers to Poss' testimony that trucks have never traveled along the ramp, across 

the scale, and along the next ramp without stopping to get weighed. 

In analyzing the common meaning of the various terms, I find that AP AC 

arguments and interpretations to be too restrictive. There isn't any connotation in 

any of the definitions that movement must be continuous, or that movement must 

be without stopping. 

To adopt the interpretation urged by AP AC would lead to a conclusion 

that a truck traveling from a ramp to the scale is on a roadway going to the scale. 

However, the scale which is in a direct line from that ramp would not to be 

considered a roadway, because it is a piece of equipment and the truck stops there. 

And then, once the truck continues down the ramp which is in a direct line from 

the scale, it would be traveling again on a roadway. 

I find this interpretation too restrictive. I find that, in harmony with the 

dictionary definitions, ie., the common meanings of the terms at issue, the entire 

route traveled by the trucks is to be considered a roadway. The route consists of 

traveling from the two-way road, along a ramp and scale in the same line, and 

26 FMSHRC 814 
continuing from the scale in the same direct line down the next portion of the 

ramp back to the road. · 

After the decision was rendered, the parties discussed settlement and 

reached an agreement that the operator pay a total civil penalty for this violation 

of $250.00. Considering the record, in this case, I find the settlement a fair 

resolution, and consistent with the Act. Accordingly, I approve it. Also, it was 

agreed that APAC will no longer contest the 104(b) order (Order No. 6101131). 

. ORDER 

It is Ordered that (1) Citation No. 6101104 be Dismissed, (2) Respondent pay a total 

civil penalty of $250.00 for the violation cited in Citation No. 6101107, and (3) Order No. 

6101131 be affirmed. 

~e~erger~ Administrative Law Judge 

Distribution: (Certified Mail) 

Gwen Y. Anderson, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, 

S.W., Rm. 7TIO, Atlanta, GA 30303 

Julie K. Hackworth, Esq., APAC-Mississippi, Inc., 50 E. River Center Blvd., P.O. Box 391, 

Covington, KY 41012 

/sb 

26 FMSHRC 815 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

October 18, 2004 

RAG CUMBERLAND RESOURCES, LP, 

Contestant 

v. 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

AD:MINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD:MINISTRATION (MSHA), 

Petitioner 

V. 

RAG CUMBERLAND RESOURCES LP, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 2000-181-R 

Citation No. 3657290; 7/6/2000 

Docket No. PENN 2000-182-R 

Citation No. 3657291; 7/6/2000 

Cumberland Mine 

Mine ID 36-05018 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2001-63-A 

A.C. No. 36-05018-04200 

Cumberland Mine 

DECISION ON REMAND 

Before: Judge Feldman 

These consolidated contest and civil penalty matters have been remanded by the 

Commission for reassessment of the civil penalty for Citation No. 3657291 for RAG 

Cumberland Resources LP's (Cumberland's) failure to immediately correct hazardous bleeder 

conditions as required by the mandatory safety standard in section 75.363(a). 26 FMSHRC 639, 

653, 658 (August 2004). The initial decision imposed a $10,000.00 civil penalty for Citation 

No. 3657291. 23 FMSHRC 1241(November1999) (ALJ). 

In its remand, the Commission directed reassessment of the civil penalty in light of its 

determination that Cumberland's violation of 75.363(a) was not unwarrantable. 26 FMSHRC at 

659. The Commission also determined that consideration of Cumberland's conduct as an 

aggravating factor based on my finding that Cumberland had breached a fundamental goal of the 

Mine Act was improper because it went beyond the scope of the statutory civil penalty criteria in 

section 1 IO(i) of the Act. 30 U.S.C. § 820(i). Id. at 658-59. 

26 FMSHRC 816 
On September 29, 2004, the Secretary filed a joint stipulation with respect to the 

reassessment issue. The parties stipulated as follows: 

This case has been remanded to this Court to reassess a civil penalty for Citation 

No. 3657291 in accordance with the terms of the Decision by the Review 

Commission dated August 10, 2004. In light of the fact that neither party can 

pursue an appeal of the Commission Decision until the penalty becomes final, the 

parties have agreed to stipulate to the assessment of a civil penalty in the amount 

of $3,000 for Citation No. 3657291. The parties enter into this stipulation to 

expedite further review of the Commission decision. 

In view of the Commission's decision, I conclude that the parties' agreement to impose a 

$3,000.00 civil penalty for Citation No. 3657291 is consistent with the penalty criteria set forth 

in section l lO(i) of the Mine Act. Accordingly, IT IS ORDERED that RAG Cumberland 

Resources LP pay a civil penalty of $3,000.00 in satisfaction of Citation No. 3657291 within 

45 days of the date of this decision. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 

401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222 

Susan Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630 East, 170 S. Independence Mall West, Philadelphia, ·PA 19106-3306 

Judy Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, 

Fairfax, VA 22031-2215 . 

/hs 

26 FMSHRC 817 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RONALD R. COLE, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

October 25, 2004 

DISCRIMINATION PROCEEDING 

Complainant 

v. 

NEWMONT MIDAS OPERATION, 

Respondent 

Docket No. WEST 2004-442-DM 

WE MD 2004-08 

Newmont Midas Mine 

Mine ID 26-02314 

ORDER OF DISMISSAL 

Before: Judge Barbour 

Section 105(c)(2) of the Mine Act (30 U.S.C. §815(c)(2)) requires a miner who believes 

he or she has been discharged or otherwise discriminated against to file a complaint with the 

Secretary within 60 days of the alleged discriminatory act. Here, the complainant, Ronald R. 

Cole, alleges his December 11, 2003, termination contravened the Act. Mr. Cole filed his 

complaint with the Secretary on April 28, 2004. The time within which he was to have filed 

expired on February 9, 2004. Mr. Cole's complaint was 79 days late. 

The Secretary's Mine Safety and Health Administration (MSHA) investigated the 

complaint and on July 22, 2004, advised Mr. Cole it believed the facts did not constitute a 

violation of Section 105(c). On August 19, 2004, Mr. Coles lodged a complaint with the 

Commission. As part of its answer to the complaint, Newmont noted that it was "untimely" filed 

with the Secretary and asserted it should be dismissed. 

On September 22, 2004, I ordered Mr. Cole to state why his complaint was late-filed and 

Newmont to state what, if any, prejudice it suffered due to the delay. I noted that although the 

Commission repeatedly has held the time limit for filing a complaint is not jurisdictional, to 

withstand dismissal, the miner must establish justifiable circumstances for the late filing, or to 

be granted the dismissal, the operator must show it has suffered material prejudice (Order 1 

(citing Hollis v. Consolidation Coal Co., 6 FMSHRC 21 (January 1984), aff d mem., 750 F.2d 

1093 (D.C. Cir. 1984 (table)). 

In responding to the order Mr. Cole stated, ''The reason for the delay ... is due to the fact 

that I was unaware that MSHA was available to assist. I was recently told by Kevin Hirsch of 

MSHA about this service to protect miner's rights. I spoke to Kevin approx. April 13" 

26 FMSHRC 818 
(Attachment to Letter to Judge (October 5, 2005)). 1 For its p~, Newmont maintained the delay 

was prejudicial because of the negative· impact it had on the memories of those who witnessed 

the events preceding Mr. Cole's termination. Newmont asserted that several persons it would · 

call now work at other Newmont facilities and, ''Their recollection about . . . [the events leading 

to Mr. Cole's discharge] will not be as strong as ... if Mr. ~ole had complied with the time limit 

to file a complaint" (Newmont' s Response 5). In addition, another witness, a former crew 

member, is no longer employed by Newmont (Id.). Finally, Newmont stated that during the 

delay, Mr. Cole contacted potential witnesses and attempted to get them to change their 

recollections of an event that directly preceded Mr. Cole's termination (Newmont 

Response 3-4). 

Newmont also expressed its belief that Mr. Cole was very much aware of his section 

105(c) rights and of the 60-day time limit for filing a complaint in that he was specifically trained 

in the topics (Newmont Response 3). Moreover, Newmont stated that it provided 

Mr. Cole with a copy of the MSHA pamphlet explaining miners' rights under the Act and 

identifying the 60-day filing deadline ilit.). The company further noted that Mr. Cole had over 

20 years' experience in underground mining, including both supervisory and non-supervisory 

positions. For these reasons, the company contended that Mr. Cole either knew, or should have 

known, about his rights under the Act, including the fact that he was entitled to file a complaint 

with MSHA, and that he had to do so within 60 days of the company's allegedly discriminatory 

act@..). 

THE LAW 

When ruling on a motion or other request to dismiss a late-filed complaint, the 

Commission's judges are required to review the facts "on a case-by-case basis, taking into 

account the unique circumstances of each situation" (Hollis, 6 FMSHRC at 24). In the past, 

several factors that have been considered in determining whether to excuse a delay (see William 

T. Sinnott. II v. Jim Walter Resources. Inc., 16 FMSHRC 2445 (December 1994) (AU) 

(considering complainant's capacity or ability to pursue a remedy under the Act); Secretaxy of 

Labor on behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278 (February 

1996) (AU) (considering complainant's awareness of his or her rights under the Act)). It has 

also been held that whether the delay has caused prejudice to the operator is relevant (Hollis, 

supra). 

RULING 

Turning first to Newmont' s claims of prejudice, I do not find the assertions of faded 

memories regarding the events leading to Cole's discharge to be persuasive. The complaint was 

approximately two and one half months late, a delay whose length reasonably would not be 

Because Mr. Cole did not indicate he served counsel for Newmont with a copy of 

the letter and attachment, I have sent counsel the necessary copies. 

26 FMSHRC 819 
expected to engender memory lapses. Nor is it prejudicial that two of Newmont's potential 

witnesses no longer work at the mine site. They still work for Newmont, and their testimony 

presumably can be obtained. Moreover, although Newmont maintains that another witness no 

longer works for Newmont - a situation that might make his or her testimony inconvenient to 

obtain - the company does not assert the testimony is unavailable. As for Newmont' s contention 

that Mr. Cole attempted to intimidate some of those who might testify against him during the 

time between his termination and the filing of his complaint, even assuming intimidation 

occurred and was prejucij.cial to Newmont's case, I cannot conclude the prejudice was caused by 

the delay since the intimidation might have taken place even if Mr. Cole had filed his complaint 

in a timely manner. 

However, the complaint still may be dismissed if Mr. Cole has failed to provide a 

justifiable excuse for the late filing, and I conclude that Mr. Cole's excuse for the delayessentially that he was unaware of his rights or, as he put it, "that MSHA was unavailable to 

assist [me]" - does not pass scrutiny. Newmont points out through the affidavit of its Health, 

Safety and Loss Prevention Manager, Lee Morrison, that Mr. Cole underwent annual refresher 

training for underground miners in March, 2001 (Newmont Response, Affidavit 2). Mr. 

Morrison was among those who conducted the training for the then owner of the mine, Dynatec. 

The training included a discussion of miner's iights and responsibilities (Id.). Mr. Morrison 

states in his affidavit that in addition to discussing miners' rights, the participants in the training, 

including Mr. Cole, received a copy of a MSHA pamphlet entitled A Guide To Miners' Rights 

and Responsibilities Under the Federal Mine Safety and Health Act 1977.1 Page 3 of the 

pamphlet contains a section entitled, "Your Rights Under the Mine Act." The section includes a 

subsection entitled "Protection Against Discrimination: Section 105(c)" and the statement: "It is 

not legal for you to be fired ... or otherwise lose job benefits for exercising your rights under the 

Act." Page 4 of the pamphlet states "A discrimination complaint ... should be promptly filed 

with [MSHA]" and cautions, "We [i.e., MSHA] may not be able to pursue a claim unless it is 

filed within 60 days of the act of discrimination"@., Attachment B). Page 4 goes onto explain, 

inter alia, that MSHA may ask the Commission to order a complainant's temporary reinstatement 

and that MSHA may file a complaint on the complainant's behalf (!Q,_). On March 9, 2001, 

Mr. Morrison and Mr. Cole signed a certificate showing that Mr. Cole attended the training 

2 To support Mr. Morrison's statement, the company has submitted an outline of the 

refresher training course. Standing alone, the outline is ambiguous regarding the pamphlet given 

to the miners. The outline indicates that during the training two topics were discussed between 

4:00 p.m. and 4:45 p.m.: "Rights and Responsibilities of Miners" and "Explosive Handling" 

(Newmont Response, Affidavit 2, Exhibit A at 4 ). The instruction "Hand out new pamphlet & 

discuss" is listed under "Explosive Handling", not under "Rights & Responsibilities of Miners" 

(Id.). However, Mr. Morrison's sworn affidavit eliminates the ambiguity. Mr. Morrison states: 

"Exhibit A [is] the course outline for the training program. As page 4 [of Exhibit A] indicates, 

one of the items discussed was miner's [sic.] rights. As the outline indicates, we handed out to 

the miners attending this program what was at the time MSHA's new pamphlet concerning 

miner's rights" QQ.J. 

26 FMSHRC 820 
®.,.,Attachment C). 

In a resume submitted on August 21, 2001, to another previous owner of the mine, 

Normandy Midas Operations, Inc., Mr. Cole stated that he had been employed by various 

companies in underground mining since 1979 and that he ~ad held both rank and-file and 

management (shift boss) positions. He also indicated he is a high school graduate (Newmont 

Response, Affidavit 2, Exhibit D). 

Given Mr. Cole's educational background, his long experience in underground mining 

and the annual refresher training he received in March, 2001, I conclude that Mr. Cole either 

knew or should have known about the time limit within which to file his complaint. His 

statement that he missed the deadline because he did not know he was entitled to assistance from 

MSHA until he spoke with an MSHA representative on April 13 is simply not credible. 

Mr. Cole worked for many years in the underground mining industry both for labor and 

for management. It defies belief that during these years he did not learn that MSHA may 

represent a miner who claims he or she has been discriminated against for safety-related reasons. 

In addition, Mr. Cole as the holder of a high school diploma is presumed to understand what he 

hears and reads. 3 He was trained in miners' rights under the Act. He received the MSHA 

publication explaining both the need to file within 60 days and how MSHA investigates a 

complaint and otherwise acts on behalf of a complainant. To find that Mr. Cole's had no 

knowledge of these matters until approximately April 13, 2004, would infer that Mr. Cole was 

oblivious of the milieu in he which worked and lacked the most elementary comprehension 

abilities. The record does not support such inferences. · 

There are times when a person must be accountable for his or her omissions as well as 

commissions. This is such a time. Letting Mr. Cole's claim proceed in the face of his incredible 

excuse, would render virtually meaningless the 60-day limit of section 105(c)(2). 

The complaint is DISMISSED. 

_f>w ;_tQ.A L Davidi'i3~~ 

Administrative Law Judge 

(202) 434-9980 . 

3 Although Mr. Cole claims ignorance of Mine Act's discrimination provisions, he 

seems to have been knowledgeable about his rights under other statutes. In an affidavit, 

Newmont' s Human Resources Representative states, inter alia, that after his discharge, Mr. Cole 

filed for unemployment benefits and filed a Worker's Compensation Claim against Newmont 

(Newmont Response, Exh. I at 2-3). · 

26 FMSHRC 821 
Distribution: (Certified Mail) 

Ronald R. Cole, 7800 Grass Valley Road, Winnemucca, NV 89445 

Andrew W. Volin, Esq., Sherman & Howard, LLC, 633 Seventeenth Street, Suite 3000, Denver, 

co 80202 

Joe Driscoll, Tom Kerr, Newmont Midas, Operations, HC 66, Box 125, Midas, NV 89414-9801 

26 FMSHRC 822 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

JIM WALTER RESOURCES, INC. 

Respondent 

WASHINGTON, D.C. 20001 

October 7, 2004 

CONTEST PROCEEDINGS 

Docket No. SE 2003-150-R 

Order No. 7670455; 06/26/2003 

Docket No. SE 2003-151-R 

Order No. 7670457; 06/27/2003 

No. 7 Mine 

Mine ID 01-01322 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2003-138A 

A. C. No. 01-01322-04260 

Docket No. SE 2004-45A 

A. C. No. 01-01322-07603 

No. 5 Mine 

ORDER DENYING MOTION IN LIMINE 

AND 

-- . ORDER DENYING MOTION TO ENFORCE SETTLE1\1ENT 

I. 

The Consolidated Cases 

In Docket No. SE 2003-150-R, Jim Walter Resources, Inc., (JWR), is contesting the 

validity of Citation No. 7670455, a citation issued pursuant to Section 104(a) of the Mine Act (30 

U.S.C. §814(a)) on June 26, 2003. The citation alleged that JWR violated mandatory safety 

standard 30 C.F. R. §75.334(b)(l), in that the bleeder system for the I-panel longwall was not 

maintained so as to continuously dilute and move methane-air mixtures and other gases, dusts, 

and fumes from the worked-out area away from active workings and into a return air course or to 

the surface of the mine. The citation referenced methane readings that were taken between June 

10 and June 25, 2003, at points in the mine's longwall bleeder system. The readings are alleged 

to have established an upward trend of methane concentrations and "collectively [to have] 

indicate[d] that the bleeder system [could] no longer handle the current methane liberation" 

(Citation No. 7670455 at 2). The citation set 6:00 p.m., June 27, 2003, as the time and date for 

abatement. 

26 FMSHRC 823 
In Docket No. SE 2003-151-R, JWR is contesting the validity of Order No. 7670457, 

which was issued at 7:45 p.m. on June 27, 2003, pursuant to Section 104(b) of the Act (30 

U.S.C. §814(b)). The order alleged that JWR failed to timely abate Citation No. 7670455, in that 

it did not make improvements to enhance the effectiveness of the longwall bleeder system so that 

the system "continue[d] to liberate high quantities of methane and ... [could not] continuously 

dilute the methane to safe operating levels" (Order 7670457). 

In Docket No. SE 2004-045-A, the Secretary is petitioning for the assessment of a civil 

penalty of $1,550 for the alleged violation of section 75.334(b)(l) contained in Citation No. 

7670455. Also, she seeks the assessment of a civil penalty of $164 for an alleged violation of 

mandatory safety standard 30 C.F.R. §75.323(e). The alleged violation is contained in Citation 

No. 7669872, issued on June 19, 2003. 

In Docket No. SE 2003-138-A, the Secretary is petitioning for the assessment of a civil 

penalty of $317 for an alleged violation of section 75.334(b)(l) contained in Citation No. 

7670075. The violation allegedly occurred on August 14, 2002. 

II. 

The Motion in Limine 

In the part of the consolidated case that involves Citation No. 7670455 and Order No. 

7670457, JWR moves to exclude from evidence the following items and testimony: certain 

specified exhibits that relate to a June 28, 2003 through July 1, 2003 ventilation survey 

conducted at JWR' s No. 5 Mine by MSHA technical support expert, John Urosek; an MSHA 

memorandum dated August 4, 2003, titled "Results of an Underground Mine Air Pressure 

Quantity Investigation at ... [JWR's] No. 5 Mine;" notes of MSHA Inspector William R. Spens 

from his investigation of the mine's ventilation system from June 27, 2003 through July 2, 2003; 

all testimony of John Urosek; all testimony of William Spens; and all testimony relating to any 

investigations or inspection of the ventilation system at the mine conducted after the issuance of 

the June 27, 2003 order (Order No. 7670457). 

The company argues that the written material and the testimony is excludable because an 

inspector must believe that the operator has violated a mandatory health or safety standard before 

he or she issues a citation or order. Therefore, the pertinent question is "whether the inspector 

reasonably believed that a violation of section 75.334(b)(l) existed, not whether the inspect[ or] 

(or MSHA) can later justify an unjustifiable citation and order .... "(Mot. 2). According to 

JWR, an investigation or inspection occurring after the issuance of the citation and order is not 

relevant and has "no bearing on whether the [i]nspector believed the operator had violations of 

any mandatory health or safety standards" aQJ. Moreover, the testimony of Messrs. Urosek and 

Spens would bring forth no firsthand knowledge of the facts underlying the citation and the order 

since they were not part of the decisional process to issue the two enforcement actions (IQ... 3-4). 

26 FMSHRC 824 
m. 

Ruling on Motion in Limine 

I decline to exclude the written materials and testimony because I cannot conclude they 

are in fact irrelevant to the issues at hand. The primary issue concerning Citation No. 7670455 

and the subsequent order is whether or not a violation of section 75.334(b)(l) occurred on 

June 26, 2003, at 7:00 p.m., and secondary issues involve the alleged significant and substantial 

(S&S) nature of the alleged violation, the degree of negligence of JWR (assuming a violation is 

found), and whether on June 27 it was reasonable for the inspector to decline to extend the time 

for abatement of the citation. It is conceivable that each item of evidence JWR seeks to exclude 

could have a bearing on these issues. 

In declining to exclude the evidence, I note my disagreement with JWR's contention that 

investigations occurring after issuance of a citation or order cannot be used to establish a 

violation cited prior to the investigation. Evidence discovered post-citation may be used- and 

not infrequently is used - to prove that prior alleged conditions existed. As counsel for the 

Secretary points out, the question is what the facts were at the time the violation was cited, and 

proof used to find the answer is not restricted to those facts that were in the inspector's mind 

when he or she issued the citation (See's Statement in Opp. to Mot. in Limine 3). 

IV. 

The Motion to Enforce Settlement and Ruling 

JWR also moves to enforce a settlement agreement it contends it reached with counsel for 

the Secretary. In its motion, JWR states that the parties began earnestly to discuss a settlement of 

these cases around September 10, 2004, and that counsel for the Secretary forwarded to counsel 

for JWR a draft settlement agreement on or around September 14. The proposed agreement 

concerned all issues in these cases except the alleged violations of section 75. 232(e) contained in 

Citation No. 7669872 (Docket No. SE 2003-45-A), which the parties believed could be 

appropriately submitted for decision on the basis of motions for summary judgment. Discussions 

continued between counsel and, on September 21or22, counsel for JWR proposed adding seven 

additional words to the draft agreement. According for JWR, the proposed additional words 

were discussed on the morning of September 22, and the parties agreed to the September 15 

settlement proposal, leaving out the proposed seven words. At this point, counsel for JWR 

understood the case was settled. However, on the afternoon of September 22, counsel for the 

Secretary began to state that there was no settlement and that terms of the September 15 proposed 

settlement were not agreeable to the Secretary. In other words, in JWR's view, counsel for the 

Secretary refuses to settle the matter on terms he proposed on September 15, terms JWR 

accepted on September 22. 

Counsel for the Secretary has yet to reply to this motion, but there is no need for him to 

do so because it is clear to me that the motion cannot be granted. The settlement of contested 

26 FMSHRC 825 
issues is an integral part of dispute resolution under the Mine Act (Pontiki Coal C01p., 8 

FMSHRC 668, 674 (May 1986)), and the Act requires settlements to be subject to the approval 

of the Commission and its judges (see 30 U.S.C. §820(k)). For there to be an enforceable 

settlement, there must be a genuine agreement between the parties; that is to say, there must be a 

true meeting of the minds as to the settlement agreement's provisions (Peabody Coal Co., 8 

FMSHRC 1265, 1266 (September 1986)). 

Settlements of c~ntested civil penalty and associated review cases are submitted for 

approval in the form of motions made orally on the record or motions made in writing. It is 

worth noting that no motion to approve a settlement has been submitted to the undersigned in 

these cases. Nor has there been any oral on-the-record representation as to a settlement and its 

terms. JWR's own motion establishes that there has been no meeting of the minds as to the 

terms of a settlement. Had there been an agreement, it would have been formalized and 

submitted in writing or it would have been entered orally on the record and documented in 

transcript form. The "back and forth" which counsel for the company describes is part of the 

settlement process, a process that has yet to reach fruition. Controversies as to who agreed to 

what and when are why the Commission's judges require fully-documented agreements before 

they recognize a case as settled. The lesson is clear; the parties must formally document their 

agreements if they want them to be enforced. 

ORDER 

For the above stated reasons, the motions are DENIED. 

Distribution: (Certified Mail) 

J)~J/ c!f 6Vv/~ 

David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Warren B. Lightfoot, Jr., Esq., David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 

Sixth Avenue N., 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618 

Thomas A. Grooms, Esq., U. S. Department of Labor, Office of the Solicitor, 2002 Richard 

Jones Road, Suite B-201, Nashville, TN 37215 

Judith Rivlin, Associate Regional Counsel, UMW A Headquarters, 8315 Lee Highway, Fairfax, 

VA 22031-2215 

ej 

26 FMSHRC 826 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

October 14, 2004 

RAG CUMBERLAND RESOURCES, LP, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

AD1\1INISTRATION (MSHA), 

Petitioner 

V. 

RAG CUMBERLAND RESOURCES LP, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 2000-181-R 

Citation No. 3657290; 7 /6/2000 

Docket No. PENN 2000-182-R 

Citation No. 3657291; 7/6/2000 

Cumberland Mine 

Mine ID 36-05018 

CIVILPENALTYPROCEEDING 

Docket No. PENN 2001-63-A 

A.C. No. 36-05018-04200 

Cumberland Mine 

ORDER DENYING MOTION TO INTERVENE1 

On August 10, 2004, the Commission directed reassessment of the civil penalty for 

Citation No. 3657291 in view of its determination that RAG Cumberland Resources LP' s 

(Cumberland's) failure to immediately correct hazardous bleeder conditions as required by the 

mandatory safety standard in section 75.363(a) was not attributable to an unwarrantable failure. 

26 FMSHRC 639. On October 8, 2004, the United Mine Workers of America (the Union) filed 

a Motion to Intervene in the above captioned proceedings. The Union relies on Commission 

Rule 2700.4(b)(l) that provides, in pertinent part, that "[a]fter the start of the hearing, ... [the 

Union] may intervene upon just terms and for good cause shown." (Emphasis added). Neither 

the Secretary nor Cumberland opposes the Union's motion. As discussed below, despite the lack 

of opposition, the Union has failed to demonstrate the requisite good cause to permit intervention 

at the late stage of these proceedings. 

The hearing in these matters was conducted in two sessions from April 3 through 

April 6, 2001, and from July 24 through July 25, 2001. Timothy W. Hroblak, a Union safety 

committeeman, was a principal witness at the hearing. The Union did not move to intervene in 

1 This Order supercedes the previous order issued October 12, 2004. The previous order 

reflected docket numbers that were not on remand. A correction has been made to the case 

caption and is reflected in this Order. 

26 FMSHRC 827 
the hearing proceeding. After the hearing, the Secretary and Cumberland filed post-hearing 

briefs. An initial decision in these matters was issued on November 28, 2001. 23 FMSHRC 

1241 (ALl). A copy of the initial decision was sent to the Union because the Union had filed a 

related compensation case in Docket No. PENN 2000-204-C that was ultimately dismissed on 

April 26, 2002. The Union did not move to intervene following its receipt of the initial decision. 

The Commission granted Cumberland's petition for review of the initial decision on 

January 7, 2002. On August 10, 2004, the Commission issued its appellate decision affirming 

the fact of the cited violations in Citation Nos. 3657290 and 3657291, and reversing the initial 

finding that the violation in Citation No. 3657291 was caused by Cumberland's unwarrantable 

failure. The Commission's remand for reassessment of the civil penalty for Citation 

No. 3657291 is currently before me. 26 FMSHRC 639. 

In support of its motion, the Union notes the Secretary has informed it that she may not 

appeal the Commission's decision. Consequently, the Union argues that it can no longer rely on 

the Secretary to represent the Union's interests. The Union asserts that the Commission's 

reversal of the unwarrantable failure "is an important aspect of this litigation that will likely have 

repercussions beyond this matter." (Union mot. at p.2). However, the Union does not seek to 

file a brief before the Commission. (Union mot. at p.3). Rather, the Union seeks to intervene 

for the purpose of participating in judicial review. (Union mot. at p.2). 

Under the Commission's Rules, a person who is permitted to intervene is a party. 

29 C.F.R. 2700.4(a). Thus, the purpose of conferring intervener status is to permit the intervener 

to play an active role by participating in the hearing and/or by filing briefs in support of its 

position. Here, however, the Union seeks party status at this late stage after briefs have been 

filed, oral argument has been presented before the Commission, and the initial decisions on the 

merits have been issued by the judge and the Commission. Granting the Union party status as an 

intervener may confer the Union with appeal rights even if the Secretary and Cumberland do not 

seek judicial review. 

I am cognizant of the unopposed nature of the Union's motion. However a lack of 

opposition cannot overcome the lack of propriety of the Union's motion. Here the Union seeks 

to accomplish indirectly what it should seek directly. If the Union wishes to intervene in order to 

participate in judicial review it must file a motion to intervene with the Court of Appeals if an 

appeal is docketed. It is inappropriate for me to confer intervener status solely for an anticipated 

appellate court proceeding. 

Finally, the Union relies on Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) to support its 

intervention request. The Union's reliance is misplaced. In Smoke the Government represented 

the interests of a Native American tribal government. The tribal entity sought to intervene after a 

summary judgment was granted against the Government, before the Government decided 

whether to appeal, to ensure an appeal of the summary decision. The Court noted that the tribal 

government had no occasion to intervene in order to protect its interests until after the judgment 

was entered. Here, the Union has failed to avail itself of the intervener provisions in the 

Commission's Rules. See 29 C.F.R. §§ 2700.4(b), 2700.73. Moreover, although their interests . 

may coincide, the Secretary does not represent the Union in these matters. 

26 FMSHRC 828 
Accordingly, the Union's motion to intervene before the undersigned Administrative 

Law Judge lacks the requisite showing of good cause. Consequently, the Motion to Intervene 

IS DENIED as untimely. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 

401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222 

Susan Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

Judy Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, 

Fairfax, VA 22031-2215 

/hs 

26 FMSHRC 829 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

UNITED l'vllNE WORKERS 

OF AMERICA, 

Intervenor 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADlVllNISTRA TION (MSHA), 

Petitioner 

V. 

JIM WALTER RESOURCES, INC., 

Respondent 

WASHINGTON, D.C. 20001 

October 14, 2004 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2003-160 

A.C. No. 01-01322-00004 

Docket No. SE 2003-161 

A.C. No. 01-01322-00005 

No. 5 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2003-174 

A.C. No. 01-01322-04271 

No. 5 Mine 

RULINGS ON PENDING MOTIONS IN LIMINE 

AND 

MOTION FOR SUMMARY DECISION 

Jim Walter Resources (JWR) has filed several pre-trial motions in limine and one motion 

for summary decision, which are addressed herein. 

I. 

MOTION IN LIMINE TO EXCLUDE REPORT 

First, the company has moved to exclude from evidence the report of the investigation 

(the "Report") MSHA conducted into two explosions that occurred at JWR's No. 5 Mine on 

September 23, 2001. The report, which is titled Report of Investigation Fatal Underground Coal 

Mine Explosions September 23. 2002, was issued on December 11, 2002. The Secretary opposes 

the motion. For the reasons that follow, I conclude that the report should not be excluded. 

When ruling on any motion, a judge must keep in mind the basic principles governing the 

subject litigation, foremost of these are the nature of the particular proceeding and the nature 

26 FMSHRC 830 
of the motion. This proceeding is administrative in nature and the motion requests exclusion of 

potential evidence prior to being offered. The Commission long ago made clear that, when 

rendering a decision, a judge must base his or her findings and conclusions on substantial 

evidence[1

] (Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-36 (May 1984)). The 

principal issues in these cases concern alleged violations of the Secretary's mine safety and 

health regulations for underground mines found during the investigation. The Report contains 

much information regarding the Secretary's view of the events leading to the accident, her 

description of the accident, and her narrative description of some, but not all, of the enforcement 

actions MSHA took and the violations it alleged as a result of the investigation. In addition, the 

Report contains narrative descriptions of the investigation, as well as narrative discussions of the 

mine's organization, the mine's physical layout, and mine procedures and systems that, in the 

Secretary's view, relate to the explosion. Several mine maps also are included. 

To be relevant, evidence must be both material and probative. To be material, it must be 

offered to prove a proposition or event that is at issue or to provide background for understanding 

the proposition or event. To be probative, it must tend to establish the proposition or event. 

Joining these concepts, the Federal Rules of Evidence defines "relevant evidence" as "evidence 

having a tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence" (Fed. R. 

Evid. 401 ). The system of proof presupposes that all relevant evidence is admissible (Fed. R. 

Evid. 402). While there are exceptions to keep otherwise relevant evidence from the record [

2

], 

the judge is granted much discretion in ruling on admissibility. If evidence is relevant, fairness to 

the parties and the judge's duty to facilitate full development of the record, warrant great restraint 

in excluding the evidence from the record.3 

RULING 

Given these underlying principles, the first issue before me is whether the Report is 

relevant, and I conclude that it is. The Report not only concerns the investigation that lead 

MSHA to issue the subject citations, in some instances it directly involves the specific citations 

at issue. At one end of the spectrum, the Report may only provide background for understanding 

Substantial evidence is "such evidence as a reasonable mind might find adequate 

to support [the judge's] conclusion" (Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938)). 

2 See e.g., Fed. R. Evid. 403 (providing for exclusion of relevant evidence "if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the 

issues . .. or considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence"). 

3 The weight the judge gives to the evidence once admitted is another matter 

entirely. 

26fMSHRC831 
the events at issue. At the other end, it may corroborate and supplement testimony establishing 

alleged violations. Either way it is relevant. However, like any relevant evidence admitted into 

evidence, it will be subject to rebuttal, and the weight that is ultimately attributed to the Report, 

or to the parts of the Report used by the Secretary and/or the UMW A, can be impacted 

fundamentally by that rebuttal. 

As noted, while all admitted evidence must be relevant, not all relevant evidence must be 

admitted. Relevant evidence may be excluded if it is only minimally relevant that is if the judge 

finds it is too tangential to the questions at issue. At law, otherwise relevant hearsay evidence is 

routinely barred. In arguing for the Report's exclusion, JWR notes that it is hearsay and argues 

that its admission would be fundamentally unfair (Mot.3). It asserts that hearsay evidence, such 

as the Report, is only admissible if it meets a high standard of reliability and truthfulness, and it 

points to Rule 803(8)(c) of the Federal Rules (Fed. R. Evid. 803(8)(c)), which permits admission 

of results and reports of investigations "made pursuant to law, unless the sources of information 

or other circumstances indicate lack of trustworthiness" (Mot. 4-5). In JWR' s view, the Report's 

lack of trustworthiness is established by its "impermissible legal conclusions and unreliable 

factual findings" (Id. 5). JWR argues that Rule 803(8)(c) bars legal conclusions within a report, 

and since the Report inextricably mixes legal conclusions with purported factual findings, the 

entire report must be excluded iliL. 6). JWR goes on to detail many circumstances which, it 

asserts, attest to the unreliability of the Report and to the inherent bias of MSHA in presiding 

over the formulation of the Report (Mot. 11-31 ). 

In my view, JWR • s objections and concerns do not on their face set forth adequate 

reasons to bar the Report from the record. If the Report is admitted, it will not speak for itself. 

For it to bear on the outcome of the case, it will have to be supplemented by testimony. Once the 

testimony has been offered, JWR will have an opportunity to impeach the testimony and on 

cross-examination to otherwise question the Report's reliability. In short, it will have the 

opportunity to use its concerns to diminish the weight attributed to the Report or to its pertinent 

parts. The essential point is that the Report will be of probative value only to the extent it 

supports my ultimate findings, and that value will be measured by weighing the Report against 

various factors, a crucial one being whether those whose statements and opinions are reported are 

available for in-court cross-examination and whether JWR persuasively attacks the reliability and 

accuracy of the witnesses. Moreover, even if the Report were inherently prejudicial to the 

company, which I do not find, the in-court right to impeach the Report as actually used at trial 

before the judge, fully protects JWR from invidious conclusions based on the Report's contents. 

Because I conclude the Report is relevant to the issues before me and because I conclude 

the company's concerns of fairness and prejudice, inter alia, can be met at trial, the motion will 

not be granted. 

26 FMSHRC 832 
II. 

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR VIOLATIONS 

Second, JWR has moved to exclude evidence of prior violations of 30 C.F.R. § 75.400 

for any purpose and to limit consideration of evidence of prior violations of 30 C.F.R. § 75.403.4 

As grounds for its motion, JWR speculates that "MSHA may intend to introduce evidence of past 

violations of§ 75.400 and§ 75.403 in an attempt to show that: (1) because it violated these 

standards in the past, it mus~ have been in violation of them on September 23, 2001; (2) ... it 

knew or should have recognized inadequate rock dust levels and addressed them during pre- and 

on-shift examinations on September 22 and 23, 2001; and (3) ... it was on notice of the need to 

be more attentive to ensuring compliance with them and, therefore, its actions on September 22 

and 23, 2001 were negligent and the result of an unwarrantable failure to comply with the law" 

(Mot. 2). The company argues that the requirements of section 75.400 are independent of the 

requirements of section 75.403, and, as such, have no factual or legal bearing on whether 

violations of section 75.403 or violations of the pre- and on-shift examination standards 

occurred, or on whether JWR was negligent or unwarrantably failed to maintain adequate levels 

of rock dust on the date of the explosion, or failed to identify allegedly inadequate rock dust 

levels during pre- and on-shift examinations ffiL 2-3). JWR also argues that prior violations of 

section 75.403 arc not at issue because JWR was not advised it was out of compliance with the 

4 Section 75.400 prohibits the accumulation of combustible materials in 

underground coal mines. The regulation states: 

Coal dust, including float coal dust deposited on rock-dusted 

surf aces, loose coal, and other combustible materials, shall not be 

permitted to accumulate in active workings, or on diesel-powered 

and electric equipment therein. 

Section 75.403 states: 

Where rock dust is required to be applied, it shall be distributed 

upon the top, floor, and sides of all underground areas of a coal 

mine and maintained in such quantities that the incombustible 

content of the combined coal dust, rock dust, and other dust shall 

be not less than 65 per centum, but the incombustible content in the 

return aircourses shall be not less than 80 per centum. Where 

methane is present in any ventilating current, the per centum of 

incombustible content of such combined dusts shall be increased 

1.0 and 0.4 centum for each 0.1 per centum of methane where 65 to 

80 per centum, respectively, of incombustibles are required. 

26 FMSHRC 833 
incombustible content levels of dust alleged in almost all of. the prior violations until after 

September 23, 2001. In the company's view, for penalty assessment purposes, the only relevant 

prior violations to consider are repeat violations of the standards the company is found to have 

violated (Mot. 11 at n.7). 

RULING 

As stated above, when ruling on any motion, a judge must keep in mind the basic 

principles governing the subject litigation, the foremost of which are the nature of the particular 

proceeding and the nature of the motion. The motion relates only to Docket No. SE 2003-160, 

which, of course, is a civil penalty proceeding. The primary issues in the proceeding are whether 

the alleged violations in fact occurred, and, if so, whether the violations were the result of JWR's 

negligence and unwarrantable failure to comply with the standards. If JWR violated a standard, a 

civil penalty must be assessed for the violation, and the assessment must take account of the civil 

penalty criteria of section 1 lO(i) of the Act (30 U.S.C. § 820(i)). 

In Docket No. SE 2003-160, eight violations are alleged to have occurred. They are set 

forth in the following citations and orders: 

5 

1. Citation No. 7328081 alleges a violation of section 

75.403 and charges that the vast majority of dust samples collected 

during the investigation of the explosion did not meet the 

regulation's requirements for incombustible content of combined 

coal dust, rock and other dust; 

2. Order No. 7328082 alleges a violation of section 

75.1101-23(a) and charges that JWR's adopted and approved 

program of instruction in the location and use of fire fighting 

equipment, etc., was not followed as required 5; 

3. Citation No. 7328083 alleges a violation of section 

75.202(a) and charges that the roof in the No. 2 Entry of the No. 4 

Section at the intersection of survey station No. 13333 was not 

supported or otherwise controlled to protect persons from hazards 

Section 75. 1101-23(a) states in part: 

Each operator ... shall adopt a program for instruction of all 

miners in the location and use of fire fighting equipment, routes of 

travel to the surface, and proper evacuation procedures to be 

followed in the event of an emergency .... " 

26 FMSHRC 834 
6 

related to a roof fall 6

; 

4. Order No. 7328085 alleges a violation of section 

75.l 101-23(c) and charges that JWR failed to conduct fire and 

emergency drills at intervals of not more than 90 days, in that 

interviews and miner records indicated that no drills had been 

conducted since March, 20017

; 

5. Order No. 7328088 alleges a violation of section 

75.360(b)(3) and charges that an adequate pre-shift examination 

was not conducted in the No. 4 Section of the mine for the 

oncoming afternoon shift on September 22, 2001, in that the rock 

dust which had been applied was inadequate, obvious and 

widespread, but was not identified as a hazard by the pre-shift 

examiner8; 

6. Order No. 7328104 alleges a violation of section 

75.362(a)(l) and charges that JWR did not perform an adequate onshift examination in the No. 4 Section of the mine where two 

mechanics were assigned to work on September 22, 2001, in that 

the rock dust which had been applied was inadequate, obvious and 

widespread, but was not identified as a hazard by the on-shift 

Section 75.202(a) states: 

The roof, face and ribs of areas where persons work or travel shall 

be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock 

bursts. 

7 Section 75.1101-23(c) states: 

Each operator of an underground coal mine shall require miners to 

participate in fire drills, which shall be held at periods of time so as 

to ensure that all miners participate in a drill no later than January 

31, 1974, and at intervals of not more than 90 days thereafter. 

8 Section 75.360(b)(3) requires the person conducting the pre-shift examination to 

examine for hazardous conditions at "[w]orking sections and areas where mechanized mining 

equipment is being installed or removed, if anyone is scheduled to work on the section or in the 

area during the oncoming shift." 

26 FMSHRC 835 
examiner; 

7. Order No. 7328105 alleges a violation of section 

76.360(b)(3) and charges that JWR did not conduct an adequate 

pre-shift examination in the No. 4 Section where miners were 

scheduled to perform maintenance work and to install roof bolts 

during the oncoming shift on September 23, 2001, in that the 

examination did not include working places where miners were 

scheduled to install roof bolts, did not include the cross-cuts 

between the No. 2 and No. 3 entries, and the rock dust which had 

been applied was inadequate, obvious and widespread, but was not 

identified as a hazard by the pre-shift examiner; 

8. Order No. 7328106 alleges a violation of section 

75.360(b)(3) and charges that JWR did not conduct an adequate 

pre-shift examination in the No. 4 Section where miners were 

scheduled to install cribs during the oncoming shift on September 

23, 2001, in that rock dust which had been applied was inadequate, 

obvious and widespread, but was not identified as a hazard by the 

pre-shift examiner. 

The operator's history of previous violations is the first of the civil penalty assessment 

criteria listed in the Act (30 U.S.C. § 820(i)). In assessing civil penalties, the Act and the 

Commission require that a judge take account not only of the operator's prior history of 

violations of the specific standards that have been violated, but of its general history as well. As 

the Commission has repeatedly noted, the language of section l lO(i) does not limit the scope of 

the applicable history to violations that are similar to the violations that are proven at trial (see 

~' Jim Walter Resources, Inc., 18 FMSHRC 552, 557 (April 1996) ). 10 It long has been the 

9 Section 75.362(a)(l) states in part: 

At least once each shift, or more often if necessary for safety, a 

certified person designated by the operator [ i.e., the on-shift 

examiner] shall conduct an on-shift examination of each section 

where anyone is assigned to work during the shift and any area 

where mechanized equipment is being installed or removed during 

the shift. The ... [on-shift examiner] shall check for hazardous 

conditions ... . 

10 For this reason, JWR's suggestion that "unrelated violations" (presumably 

violations of standards other than those found to have existed) should not be considered as part 

of JWR' s relevant history of prior violations, is contrary to Commission precedent and is 

26 FMSHRC 836 
practice in civii penalty cases for a judge to consider as relevant all paid violations that occurred 

within 24 months of a found violation. To the extent previous violations of sections 75.400 and 

75.403 come within this parameter, they are relevant and will not be excluded. 

Nor am I persuaded that evidence of any prior violations of section 75.400 or section 

75.403 offered as proof that JWR violated section 75.403 (as alleged in Citation No. 7328083) or 

section 75.360(b)(3) (as alleged in Orders No. 7328088, 7328105 and 7328106) and section 

75.362(a)(l) (as alleged in Order No. 7328104) should be excluded. It is obviously true, as the 

company points out, that section 75.400 and section 75.403 have different requirements and, at 

this point, it seems a "reach" to imagine how prior violations of section 75.400 and section 

75.403 might in part establish the alleged violations of section 75.403 and the pre-shift and onshift examination standards, but, without the testimony of those who assert a connection between 

the past violations and an alleged violation, I cannot entirely rule out such a connection and, 

hence, I cannot rule out the relevancy of the past violations for this purpose. As previously 

noted, any testimony offered by MSHA in this regard will be subject to cross-examination, and 

the efficacy of the Secretary's position will be best judged on the basis of the fully developed 

record. Although the company asserts that allowing evidence of prior violations of section 

75.400 and section 75.403 to show that JWR violated section 75.403 and the cited pre-shift and 

on-shift examination standards would be prejudicial to its interests (Mot. 10), this is an 

administrative proceeding where the judge can weigh the totality of the evidence, not a case in 

which evidence needs to be excluded to shield a jury from the taint of bias. 

Moreover, contrary to JWR's assertion, past violations of section 75.400 and section 

75.403 may be relevant to determine whether the company was negligent and/or unwarrantably 

failed to comply with section 75.403, section 75.360(b)(3) and section 75.362(b)(l). Negligence 

is the failure to exercise the care reasonably required under the circumstances and unwarrantable 

failure is "aggravated conduct, constituting more than ordinary negligence by a mine operator in 

relation to a violation" (Emery Mining Corp., 9 FMSHRC 1995, 2004 (December 1987)). In 

determining if conduct is unwarrantable, the Commission has recognized a number of nonexclusive factors that are relevant (see e.g., Mullins and Sons Coal Co., 16 FMSHRC 192, 195 

(February 1994); Peabody Coal Co., 14 FMSHR.C 1258, 1261(August1992)) and has stated that 

it is the totality of the operator's conduct in relation to the violation that must be considered (The 

Helen Mining Co., 10 FMSHRC 1672, 1676 n. 4 (December 1988), citing Emery Mining Corp., 

9 FMSHRC 1997 (December 1987); see also FMC Wyoming Corp., 11 FMSHRC 1622, 1627-28 

(September 1989)). (Logically, the same analysis applies when making a negligence finding.) 

Thus, where an operator has been placed on notice about a condition that constitutes a violation, 

the level of priority placed on abatement of the problem is a factor properly considered in a 

negligence and unwarrantable failure analysis (see, e.g., Enlow Fork Mining Co., 19 FMSHRC 5 

(January 1997)). If, as JWR maintains, in many instances it was not placed on notice of alleged 

violations until after the explosions occurred, it may offer testimony to this effect at trial. 

Certainly, such testimony would be relevant in assessing the priority the company gave to 

rejected. 

26 FMSHRC 837 
maintaining the required incombustible content of dust in the are11 and to the totality of the 

company's conduct. 

For these reasons, the motion in limine to exclude evidence of prior violations will not be 

granted. 

III. 

·MOTION FOR SUMMARY DECISION 

OR 

MOTION IN LIMINE TO EXCLUDE DUST SAMPLE RESULTS 

Third, JWR has moved for a summary decision finding Citation No. 7328081, and Orders 

No. 7328088, 7328104, 7328105, and 7328106 invalid; or, in the alternative, for an order in 

limine, excluding from evidence the results of mine dust samples taken by MSHA after the 

explosions on September 23, 2001. 

As noted above, Citation No. 7328081 charges, inter alia, that JWR failed to maintain the 

incombustible content of the mine dust at a required level throughout specified parts of the mine 

and that the condition "contributed to the severity and extent of the second explosion." The 

orders charge that JWR failed to properly pre-shift and on-shift pertinent parts of the No. 4 

Section on the last several shifts prior to the explosions because the company failed to recognize 

and address the inadequacy of the rock dust applications in the area. 

To support the allegations relating to incombustible content, MSHA collected and 

analyzed dust samples. The samples were collected from mid-October until mid-December 

2001. The samples were analyzed at the agency's Mt. Hope, West Virginia laboratory. The 

results of the samples purportedly showed that of 123 band samples taken, 121(over98%) had 

incombustible levels below the regulatory requirements - that is, the incombustible content of 

the combined coal dust, rock dust and other dust was less than 65% in the intake air courses and 

less than 80% in the return air courses. 

JWR, however, points out that coal extracted from the mine comes for the Blue Creek 

Coal Seam, a soft and unusually friable seam that readily crumbles into dust (Mot. 7) and that 

the sample results should "come as no surprise" since they were taken: after two explosions, 

significant flooding, and the passage of 7 toll weeks (Mot. 8-9). In the company's view, 

"common sense" indicates that, given these factors, the samples could not possibly accurately 

depict pre-explosion conditions at the mine (Mot. 9). Therefore, the samples are not evidence of 

what they purport to prove and, because the citation and orders are premised on the samples, the 

enforcement actions are invalid (Mot. 9-10). 11 In other words, the samples should be excluded 

11 The company cites to cases upholding the principle that a test result used as 

evidence of a past event must reflect conditions sufficiently comparable to the conditions that 

existed at the time of the past event (see. e.g., Hall v. General Motors Corp., 647 F.2d 178, 180 

26 FMSHRC 838 
as irrelevant because they are not representative of pre-explosion cc::mditions (Mot. 29). 

JWR also attacks the samples as unreliable and, hence, inadmissable because they are not 

identified as to their source and because they are not representative of the whole substance they 

purport to represent (Mot. 38). The company asserts all of the purported band samples are not in 

fact band samples; some are "grab" samples and, therefore, are inherently unrepresentative (Id.). 

It also asserts, in several instances, MSHA relied on two different sampling results from the same 

location (Mot. 39), and that.some of the samples where contaminated by dust blown from other 

areas during the explosion (Mot. 39). 

For these reasons, summary decision should be granted, vacating the citation and three of 

the four orders, and the fourth order (Order No. 7328105) should be modified to eliminate any 

reference to inadequate rock dust and the failure of the examiners to detect (Mot. 40). 

Finally, although the citation and orders on their face indicate the alleged violations are 

based on the collected dust samples, JWR notes that Inspector Murray, who issued the citations 

and orders, stated in deposition testimony that the even if the dust samples do not represent 

conditions as they existed prior to the explosion, the enforcement actions are nonetheless valid 

because of "the fact of the explosion" itself (Mot. 42, quoting Murray dep. 391-392). JWR 

points out that Clete Stephan, who it describes as MSHA's "principal expert on the issue" (Mot. 

42), stated that an explosion could be propagated even with 92 or 93 percent incombustible 

content or with "a little sprinkling of float coal dust on top surfaces" (Mot. 42, quoting Stephan 

dep. 416). For these reasons, JWR maintains the fact of the explosion cannot in itself support 

the citation and orders (Mot. 42). 

If summary decision is denied, JWR, nonetheless, wants the samples barred from 

admission to the record. 

RULING 

Commission Rule 67 provides: 

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 (29 C.F.R. 

§2700.67). 

The material facts involved in establishing the violation of section 75.403 as set forth in 

Citation No. 7328081 tum on the question of whether rock dust in the cited areas was maintained 

(D.C. Cir. 1980); Mattis v. Carlon Electrical Products, 295 F.3d 856, 863 (8th Cir. 2002)). 

26 FMSHRC 839 
in such quantities that the incombustible content of the combined coal dust, rock dust and other 

dust was not less than 65%. It is clear from the citation that the Secretary's allegation of a 

violation is premised on the results of the samples. If the samples do not support the alleged 

violation, it cannot be sustained, unless the Secretary can prove an alternative plausible theory. 

The material facts involved in establishing a violation of section 75. 360(b)(3) as set forth in 

Orders No. 7328088, 7328105 (in part), and 7328106 and section 75.362 (a)(l) as set forth in 

Order No. 7328104 are whether the pre-shift examiner conducted a detective examination on the 

oncoming afternoon shift on September 22, 2001, in failing to identify inadequate rock dust 

applications which then existed in the areas the examiner traveled (Order 7328088); whether the 

on-shift examiner conducted a detective examination in the No. 4 Section on the afternoon shift 

on September 22, 2001, in failing to identify inadequate rock dust applications which then 

existed (Order No. 7328104); whether the pre-shift examiner conducted a detective examination 

on the No. 4 Section, where persons were scheduled to perform maintenance work and install 

roof bolts, in failing to identify inadequate rock dust applications which then existed (Order No. 

7328105); and whether the pre-shift examiner conducted a detective examination on the No. 4 

Section, where persons were scheduled to work installing cribs, in failing to identify inadequate 

rock dust applications which then existed (Order No. 7328106). It is clear the allegations of 

violations largely are premised on the assertion that the inadequate rock dust applications were 

"obvious and widespread" and "should have been recognized by a prudent examiner" (e .g., Order 

7328106). 

While JWR has raised fundamental questions concerning the relevance of the sample test 

results as indicative of the conditions existing at the time the examinations were conducted, the 

Secretary has responded by asserting that the sample results are relevant and that they establish a 

prima facie case JWR was not in compliance with section 75.403. She asserts that, if anything, 

the test results were altered in JWR' s favor by the explosion and its aftermath (Sec.' s Resp. 3), in 

that the explosion actually increased the percentage of incombustible content, "because coal dust 

is consumed and incombustible content settles out as the forces dissipate in the area the dust 

originally was located" (Id. 9). Indeed, according to the Secretary, the incombustible content 

ration may have reached a level 5% to 7% higher than that which existed before the explosion 

(IQ.,_ 10). Moreover, flooding that followed the explosion would have had a neutral effect, if any, 

on the samples, in that coal and rock particles "would have been drained out of the flooded area 

in equal proportion to their presence in the area" ffil.10). Finally, the Secretary argues that rib 

sloughage caused by the unusually friable coal did not materially affect the sample results and 

that the samples were properly collected and analyzed (ld.12-13). Thus, in the Secretary's view, 

the question of the reliability of the sample results is a factual dispute that forecloses summary 

decision ffil 6-7). 

With regard to the alleged violations of section 75.360(b)(3) and section 75.362(a)(l), the 

Secretary maintains that the pre-shift and on-shift examiners violated that standards by failing to 

detect the inadequate rock dust conditions that existed and by failing to detect the "float coal dust 

explosion hazard" (Sec.'s Resp. 14). The Secretary adds that, ''The operator appears to have 

failed to inform its examiners when MSHA inspectors found hazardous conditions in areas that 

26 FMSHRC 840 
had been examined .... [and] that over time a degree of laxness in the detection and correction 

of hazardous conditions occurred at the ... [m]ine" (Id.). She asserts her case in this regard rests 

on more than sample results. 

JWR's motion for summary decision must fail, in that material facts -namely, those 

concerning the relevance of the dust samples - very much are in dispute. Do the samples 

establish. the incombustible content of the dust as it existed prior to the explosion? The issue 

appears to be critical to est.ablishing the alleged violation of section 75 403 and has a bearing 

also on·proving the alleged violations of section 75.360(b)(3) and section 75.362(a)(l). 

Although JWR has raised significant questions concerning the effects of the explosion and its 

aftermath upon the incombustible content of the samples, the Secretary has responded that she 

can answer the questions with facts that prove the sample results accurately reflect pre-explosion 

conditions. The answer will lie in the proof the parties offer at trial. Moreover, while the results 

of dust samples may be indicative of the evident nature of the allegedly inadequate applications 

of rock dust, they are not the only evidence that can conceivably support finding violations of the 

pre-shift and on-shift examination standards. Credible evidence of the visual appearance of the 

areas and credible evidence of the significance of the appearance also may be offered. Again, the 

answer will lie in the proof the parties offer at trial. 

The motion in limine also must fail. I cannot conclude based on the record as it now 

stands that the sample results are irrelevant to establishing the alleged violations. Indeed, 

depending on the evidence offered at trial, they may be highly relevant. Nor is failing to exclude 

them prejudicial to JWR when, at trial, the company will have the opportunity to raise questions 

regarding the effects of the explosions on the sample results and to offer evidence as to those 

effects. It is not implausible that the company will be able to establish that no significant weight 

should be attributed to any of the sample results, in which case the Secretary's attempts to prove 

a violation of section 75.403 may be severely impaired, and her attempts to prove violations of 

section 75.360(b)(3) and section 75.362(a)(l) also will be compromised, but, the issues must be 

tried to find out. 

ORDER 

For the reasons stated above, JWR's motions are DENIED. 

JJv;cl{f_;~ David F. Barbolir 

Administrative Law Judge 

(202) 434-9980 

26 FMSHRC 841 
Distribution: (Certified Mail and by Facsimile) 

Edward H. Fitch, Esq., Keith E. Bell, Esq., U.S. Department of Labor, Office of the Solicitor, 

1100 Wilson Blvd., 22"d Fl., Arlington, VA 22203 

Judith Rivlin, Associate Regional Counsel, UMW A Headquarters, 8315 Lee Highway, Fairfax, 

VA 22031-2215 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, lLP, 1001 Pennsylvania 

Avenue, N.W., Washington, DC 20004-2595 

David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 

2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618 

ej 

26 FMSHRC 842 * U.S. GOVERNMENT PRINTING OFFICE: 2004 310-984115910