NOVEMBER AND DECEMBER 2009 

COMMISSION DECISIONS AND ORDERS 

11-13-2009 American Mobile Aggregate Crushing 

11-13-2009 Bayer Construction Co., Inc. 

11-13-2009 Fisher _Sand & Gravel Company 

11-13-2009 Canneuse Lime, Inc. 

11-16-2009 Hanson Aggregates Midwest, LLC. 

11-16-2009 Moran Environmental Recovery 

11-16-2009 Active Minerals International, LLC. 

· 11~18-2009 Delta Sand & Gravel · 

11-30-2009 Wingdale Materials, LLC. 

11-30-2009 Highland Mining Company 

12-03-2009 Banner Blue Coal Company 

12-10-2009 Morton Salt Division/Morton International 

12-10-2009 John R. Hurley 

12-10-2009 Solvay Chemicals 

12-10-2009 Blue Haven Energy, Inc. 

12-10-2009 . Ray Coun,ty Stone Producers, LLC. 

12-10-2009 .· M ~ P ~ervfoes;. Inc. · · 

.. · .. 12-14-2009 ... · IO Coal Gompany, Inc. 

12-14-2009 . Webster County Coal, LLC. 

12-15-2009 Consoli<hltion Coal Company 

12-16-2009 Consol Pennsylvania Coal Company · 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-04-2009 Cloverlick Coal Co., LLC. 

11-05-2009 Peter J. Phillipsv. A & S Construction Co. 

11-18-2009 Consolidation Coal Company 

11-23-2009 Beylund Construction, Inc. 

11-30-2009 Sec. Labor o/b/o Lige Williamson v. 

Cam Mining, LLC. (amendment) 

12-02-2009 Sec. Labor o/b/o Mark Gray v. 

North Fork Coal Corp. (dissolving Order) 

12-03-2009 Knox Creek Coal Corporation 

12-09-2009 RS & W Coal Company 

12-09-2009 Royal Cement Company 

12-11-2009 PatriotMining,LLC. 

12-28-2009 Freedom Energy Mining Co. 

12-31-2009 Ohio County Coal Company 

12-31-2009 Shelby Mining Company 

i 

CENT 2009-660-M 

CENT 2009-716-M 

CENT 2009-758-M 

LAKE 2010-12-M 

LAKE 2010-27-M 

SE 2009-687-M 

SE 2010-38-M 

· .WEST 2009-1103-M 

YORK 2009-135-M 

WEVA2009-110 

VA 2009-3 

CENT 2010-30-M 

VA 2010-7 

WEST 2009-1099-M 

WEVA2010-144 

CENT 2010-88-M 

WEVA2009-1983 .. 

WEVA 2007-293: 

KENT 2009-167 

WEV A 2009-1871 

PENN 2009-546 

KENT 2008-497 

WEST 2009-286-DM 

WEVA2007-712 

CENT 2008-721-M 

KENT 2009-1428-D 

KENT 2009-1429-D 

VA 2007-15-R 

PENN 2010-103-E 

WEST 2007-844-M 

VA 2009-29 

KENT 2008-778 

KENT 2007-318 

SE 2008-667 

Pg. 1281 

Pg. 1285 

Pg. 1288 

Pg. 1291 

Pg. 1294 

Pg. 1297 

Pg. 1300 

.Pg.1303 

Pg. 1307 

Pg. 1313 

Pg. 1320 

Pg. 1328 

Pg. 1331 

Pg. 1334 

Pg. 1336 

Pg. 1339 

Pg. 1343,·. 

Pg. 1346 · 

Pg. 1367 · 

· Pg.1370 

Pg.1373 

Pg. 1377 

Pg. 1387 

Pg. 1398 

Pg. 1410 

Pg. 1418 

Pg. 1420 

Pg.1422 

Pg. 1440 

Pg. 1459 

Pg. 1464 

Pg. 1475 

Pg. 1486 

Pg. 1501 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-06-2009 Billy Brannon v. Panther Mining. LLC. 

11-13-2009 Billy Brannon v. Panther Mining, LLC. 

11-18-2009 Billy Brannon v. Panther Mining, LLC. 

12-02-2009 Gilbert Development Corp. 

12-03-2009 Black-Beauty Coal Company 

12-18-2009 Litts & Sons Stone Company 

12-10-2009 Mountain Coal Company 

(correcting clerical error- page sub.) 

ii 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

WEST 2008-201-M 

LAKE 2008-479 

PENN 2009-273-M 

WEST 2007-409-R 

Pg. 1515 

Pg. 1533 

Pg. 1541 

Pg. 1547 

Pg.1549 

Pg. 1557 

Pg. 1559 

NOVEMBER AND DECEMBER 2009 

Review was granted in the following case during the months of November and December 2009: 

Jayson Turnerv. National Cement Company of California, Docket No. WEST 2006-568-DM. (Judge 

Jacqueline Bulluck, September 30, 2009) · 

Review was denied in the following case during the months of July and August 2009: 

Secretary of Labor, MSHA v. Armstrong Coal Company, Docket Nos. KENT 2009-694, et al. (Chief 

Judge Robert Lesnick, October 30, 2009 - unpublished settlement order) 

iii 

COMMISSION DEQSIONS ·AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF I:AJrOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 13, 2009 

. . Docket No. CENT 2009-660-M 

A.C. No. 13-02377-181753 

AMERICAN MOBILE AGGREGATE 

CRUSHING 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ('~e Act"). On July 28, 2009, the Commission received from American 

Mobile Aggregate Crushing ("AMAC;') a letter seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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., 11FMSHRC1529, 1530 (Sept. 1995). 

31FMSHRC1281 
AMAC states that it did not receive the proposed penalty assessment from the 

Department of Labor's Mine Safety and Health Administration ("MSHA"). AMAC states it was 

not aware that MSHA had issued the proposed assessment until it received a delinquency notice 

from MSHA dated July 1, 2009. 

The Secretary does not oppose AMAC's request to reopen the proposed penalty 

assessment and agre~ that the proposed assessment was returned to MSHA undelivered. She 

states that all proposed assessments are sent to the operator's address of record and that this 

constitutes service under MSHA's rules. She notes that it is the operator's responsibility to 

maintain an accurate address of record to ensure future delivery of proposed assessments via 

Federal Express. 

' . 

31FMSHRC1282 
Having reviewed AMAC's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1283 
Distribution 

Mark Zeltwanger, President 

AMAC,LLC. 

26545 CR 52 

Nappanee, IN 46550 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington~ VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal. Mine .. Safety & Health Review Conimission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1284 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LAOOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BA YER CONSTRUCTION 

COMP ANY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

November 13, 2009 

Docket No. CENT 2009-716-M 

A.C. No. 14-01456-183840 

BEFORE: Jo~ Chairman; Duffy, Young, and Cohen, Commissioners 

ORDER 

. Bv·Tim ¢0Mtvn8s10N: . , . , I . . , 

This matter arises und~rthe Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On August 11, 2009, the Commission received from Bayer 

Construction Company ("Bayer") a letter seeking to reopen a penalty assessment that may have 

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

§ 815(a). 

Under section IOS(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 Secretary submits that upon reviewing the records in this proceeding; she has 

discovered that the proposed penalty was timely contested. The operator made its contest of the 

penalties at issue in a cover letter that also contained the payment check for some other penalties 

and did not include the proposed assessment form. The Secretary asserts that she has corrected 

her records and the agency is treating the matter as having been timely filed. 

31FMSHRC1285 
Having reviewed Bayer's request and the Secretary's response, we find the request to 

reopen to be moot. Bayer has timely contested the proposed penalty assessment, and therefore it 

did not become a final order of the Commission. The Secretary shall file a penalty petition 

within 45 days of the date of this order, if she has not done so already. This case shall proceed 

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1286 
Distribution 

Stan Hambright, Safety Manager 

Bayer Construction Co., Inc. 

P.O. Box 889 

Manhattan, KS 66505-0889 

W. Christian Schumann; Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th FIOor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety &Health Review Comntission 

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

Washington, D.C. 20001-2021 

31FMSHRC1287 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FISHER SAND & GRAVEL 

COMPANY 

SUITE9500 

WASHINGTON, DC 20001 

November 13, 2009 

Docket No. CENT 2009-758-M . 

A.C. No. 32.:.00580-194209 

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

ORDER 

BY THE COMMISSION: ,· ... . 

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

§ 801 et seq. (2006) ("Mine Act"). Oil August 21, 2009, the Commission received ~om Fisher. 

Sand & Gravel Company ("Fisher") a letter seeking to contest the citation that had given rise to a 

penalty assessment that may have become a final order of the Commission pursuant to section 

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

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

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

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

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

The Secretary submits that upon reviewing the records in this proceeding, she believes 

that the proposed penalty has not become a final order of the Commission. On August 12, 2009, 

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

Assessment No. 000194209, which was received by Fisher on August 17, 2009. On August 21, 

2009, Fisher sent the Commission a letter attempting to contest the citation that had given rise to 

the proposed penalty. On September 2, the Secretary contacted Fisher's legal counsel and 

infonned him that Fisher had until September 16, 2009, to either contest or pay the proposed 

penalty. On September 15, 2009, Fisher filed a timely contest of the proposed penalty, and the 

proceeding has been assigned Docket No. CENT 2009-831-M. 

31 FMSHRC 1288 
Having reviewed Fisher's request and the Secretary's response, we find the request to 

reopen to be moot. Fisher has timely contested the proposed penalty assessment, and therefore it 

did not become a final order of the Commission. This case shall proceed pursuant to the Mine 

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1289 
Distribution 

Timothy A. Priebe, Esq. 

Fisher Sand & Gravel Co. 

P.O. Box 1034 

3020 Energy Drive 

Dickinson, ND 58602-1034 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, v A 22209-2296 

Myra James, Chief 

·Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

·Chief Administrative LawJudge Robert J. Lesnick 

Federal Mine Safety & Health Review Commiss~on , 

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

. Washington, D.C. 20001-2021 

31 FMSHRC 1290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CARMEUSE LIME INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 13, 2009 

Docket No. LAKE 2010-12-M 

A.C . .No. 33-00013-190312 

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

ORDER 

. . 

:av THE COMMISSION: 

This matter arises tinder the Federal Mirie Safety and Health Act of 1911, 30 u.s.c. 

§ 801 et seq. (2006) (''Mine Act"). On October 6, 2009~ the Cbin:tnission received from 

Carmeuse Lime Inc. ("Carnieuse") a motion frOm counsel to re<>pen a penalty assessment that 

had become a final order of the Commission pursuant to section l05(a) of the Mine Act,'.30 

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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., 11FMSHRC1529, 1530 (Sept. 1995). 

31 FMSHRC 1291 
In a detalled submission, Carmeuse explains that the company official responsible for 

filing notices of contest to penalty assessments was out of the office on travel during much of the 

30-dayperiod following the operator's receipt of the subject assessment and that he had taken on 

additional duties because of the sudden resignation of the regional manager. Consequently the 

notice that Carmeuse was contesting two of the penalties was mailed one day late to the 

Department of Labor's Mine Safety and Health Administration. The Secretary of Labor does not 

oppose reopening .. 

Having reviewed Carmeuse's request and the Secretary's response, in the interests of 

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

, furth~.proceedings pursuant to the Mine Act and the Commission'$Procedural Rules, 29 C.F.R. 

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1292 
Distribution 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222-

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

llOO Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd, 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert l Lesnick· 

Federal Mine Safety & Health Review, Commission 

601 New Jez:~eyAvenue, N.W., Suite 9500 

Washington, D.'c. 20001-2021 

31FMSHRC1293 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HANSON AGGREGATES 

MIDWEST,LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

November 16, 2009 

Docket No. LAKE 2010-27.:.M 

A.C. No. 33-00064-181827 

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

ORDER ·' 

BY THE COM¥JSSION: : . '.-

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

§ soi' et seq. (2006) ("Mine Act*'). On October 8, .. 2009, the' Commission received from Hanson . 

Aggregates Midwest, LLC ("Hanson'') a requesito reoperi a penalty assessment that had become 

a final order of the Commission puisuant to,section.105(a) of the M~e Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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). 

31 FMSHRC 1294 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000181827 to Hanson on April 9, 2009, proposing penalties for three 

citations and an order that had been issued to Hanson on January 15, 2009. Hanson, which had 

by letter previously requested a conference with the local MSHA office on two of the citations, 

promptly paid the other two penalties. Hanson states that it filed its request to reopen after 

learning :from the local MSHA district office that the office had lost Hanson's conference 

request. It appears from Hanson's request that it mistakenly believed that its conference request 

also served as a notice of contest for the proposed penalties associated with the two citations in 

question. The Secretary of Labor does not oppose reopening. 

. Despite its outstanding conference request on the citations, Hanson was obligated to file a 

formal contest of the associated penalties in the assessment within 30 day5. of receipt of the 

assessment. See 29 C.F.R. § 2700.26. Nevertheless, having reviewed Hanson's request and the 

Secretary's response, in the interests of justice, we hereby reopen this matter and remand it to theChief Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

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

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

See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1295 
Distribution: 

Dean Harshman 

ESHMngr. 

Hanson Aggregates Midwest, LLC 

8130 Brint Rd. 

P.O. Box278 

Sylvania, OH 43560-0278 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick . 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1296 
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 

November 16, 2009 

Docket No. SE 2009-687-M 

A.C. No. 38-00014-180422 

MORAN ENVIRONMENTAL RECOVERY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 etseq. (2006) ("Mine Act'')~ On Juiy 7, 2009, UteCommissionreceived from Moran· 

Environmental Reeovery ("Moran").a letter from its biiector of Health & Safety seeking to 

reopen a penalty assessinent that had become a final order of the Commission pursuant to sectio.n 

105(a) of the Mine Act, 30 tJ.S.C. § 81S(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. § 81S(a). 

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

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

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

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

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

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

See 29 C.F.R. § 2700.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). 

31FMSHRC1297 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment Case Number 000180422 to Moran on March 26, 2009. Moran states that 

it mailed its contest of the proposed assessment to the wrong MSHA address and was not 

informed of its error until after the time to file has passed. Moran enclosed documentation 

indicating that it mailed its letter of contest timely, but to an incorrect MSHA address. 

The Secretary_does not oppose Moran's motion to reopen. 

Having reviewed Moran's request and the Secretary's response, in the interests of justice, 

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

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

i10o:, Aceordingly, consistent with Rule 28, the Secretary shall file· a petition for assessm~ent of 

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1298 
Distribution: 

Leanne M. Stegman 

Dir. of Health & Safety 

Moran Environmental Recovery 

20 Commerce Rd. 

Newton, CT 06470 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U:S. DepartmenfofLabor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor -

. 1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesl)ick ·• 

Federal Mine Safety & Health Review Commission · 

601New Jersey Avenue, N.W., Suite9500 · 

W~:ngton, D..c. 20001.:2021 ·· 

31FMSHRC1299 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OFLABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ACTNE MINERALS 

INTERNATIONAL, LLC 

601 NEW JERSEY AVENUE. NW 

SUITE9500 

WASHINGTON, DC 20001 

Noveinber 16, 2009 

Docket No. SE 2010-38-M 

A.C. No. 09-01192-189515 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act") .. On October 13, 2009, the Commissfon reeeivedfr(;Iri: Active 

Minerals International, LLCf'Active") a motion from counselto reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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 

31 FMSHRC 1300 
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). 

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

Proposed Assessment No. 000189515 to Active on June 30, 2009, proposing penalties for five 

citations that had been issued to Active in early May 2009. Counsel for Active contends that she 

timely contested all fiv~nalties on behalf of the operator by letter to the local MSHA district 

office dated July 13, 2009. The Secretary of Labor does not oppose reopening, but states that the 

proposed assessment form instructs that notices of contest are to be mailed to MSHA's Civil 

Penalty Compliance Office in Arlington, Virginia. 

· · · "· · · The Secretary correctly points out that the proposed assessment form specifies ~t 

contests of proposed penalties are to be sent to the Arlington office. Nevertheless, we note that 

Active did send its letter to the local MSHA district office within the 30-day period for contests, 

and there is no indication that Active has previously sent contests to the wrong address.1 Having 

reviewed Active' s request and the Secretary's response, in the interests of justice, we hereby 

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

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

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

within 45 days of the date of this order. See 29 C.F~R. § 2100.28. 

Robert F. Cohen, Jr., Commissioner 

1 We caution Active that it must send any future notices of contest regarding proposed 

penalties to the address specified on the proposed assessment form. 

31 FMSHRC 1301 
Distribution: 

Carla J. Gunnin, Esq. 

Constancy, Brooks & Smith, LLC 

Suite2400 

230 Peachtree St. 

Atlanta, GA 30303-1557 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department ofLabor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor · 

. · 1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

. Washington, D.C. 20001-2021 

31 FMSHRC 1302 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DELTA SAND & GRAVEL CO. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 18, 2009 

. ' 

Docket No. WEST 2008-1103-M 

A.C. No. 35-00481-131.566 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act'). On March 3~ 2009, the ~ommi~ion received from Delta . . 

· Sand &-Gravel Co. ("Deltan) a second.motion by counsel seeking to reopen a penalty.assessment 

that had become a final order of the Commission pursuant to section 105( a) of the Mine Act, 3.Q · 

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

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

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

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

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

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

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

from a final order of the Commission on the basis of 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 ofCivilProcedure''); 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 

31 FMSHRC 1303 
timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

On February 26, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment to Delta for two citations MSHA had issued to 

Delta in November 2007. Delta did not pay the assessment until it received a delinquency notice 

from MSHA. In its first motion, Delta requested reopening on the ground that the assessment 

was paid in error. According to Delta, the citations underlying the assessment were related to a 

fatal accident, and Delta had intended to contest the proposed penalties, as it later did in the case 

of another, much larger, assessment resulting from that accident. Delta stated that its payment of 

the penalties was due to office personnel not realizing the connection between the assessment . 

and the accident. · 

While Delta's request for relief addressed the mistake that led to its failure to return the 

assessment form to MSHA, its motion was silent regarding why the assessment apparently sat 

unpaid for months, despite having purportedly been routed through Delta's payment process. 

Consequently, Delta's request to reopen was denied without prejudice. Delta Sand & Gravel 

Co., 31FMSHRC4, 5 (Jan. 2009). 1 

In its second request to reopen, Delta states that the assessment was not paid until the. 

delinquency notice was received.from MSHA because the individual responsible for reviewing· 

and paying assessments, Mark Slinker, died iii the July2007 fatal accident that led to:the ·· 

. citations that are the subject ofthe assessment. ·According to Delta, it had yet to put new .. , . 

·· procedures in place when the assessment.at issue: was received. . ·;., · 

' . . . ·. ' : '. ·. ~\. . ... ; ·. 

·· ;, ·.: . The Secretary of Labor did riot oppose Delta's first request to reopen and did not r~pond 

to the second request. 

1 Commissioners Jordan and Cohen voted to deny Delta's original motion without 

prejudice, while Chairman Duffy and Commissioner Young would have remanded the case to the 

Chief Administrative Law Judge for a determination of good cause. The effect of the split 

decision was that the motion was denied without prejudice. 

31 FMSHRC 1304 
The fact that the proposed assessment was received seven months after the tragic death of 

Mr. Slinker but Delta had not yet adjusted its procedures to account for his absence suggests that 

Delta was not paying proper attention to its obligations under the statutory penalty assessment 

process. Nevertheless, given the circumstances of this case, including the fact that Delta had 

earlier indicated an intent to contest proposed penalties issued in connection with the fatal 

accident, in the interests of justice, we hereby reopen this matter and remand it to the Chief 

Administrative Law Ju<!ge for further proceedings pursuant to the Mine Act and the 

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

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

See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1305 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 207J)5 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief A4n;rim$tratiye Law Judge Robert J. Lesnick 

Fedenu Mine Safety & Health Review Comniission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1306 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WINGDALE MATERIALS, LLC 

SUITE 9500 

WASHINGTON, DC 20001 

November 30, 2009 

Docket No. YORK 2009-135-M 

A.C. No. 30-03138-179105, 

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

ORDER 

BY: Jor~, Ch~~; Y 0.ung and Coheri, Commissioners • . • • . • • ~· ·' •· '> .~. . . . . • • • 

This matter arlses linder the Federal Mlne Safety and Health Act ofl977, 30 U.S.C. 

§ 801 et seq. (2006)('~e Act"). On June 16, 2009, the Commission received a motion by . 

counsel to reoperi a pellalty assessment issued to Wingdale Materials, LLC ("Witigdale'') that had . 

become a final order of the Commission p;ursuant to section 105(a) of the Mine Act, 30 U$.C. · 

§ 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.1()>) (''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 pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31 FMSHRC 1307 
Wingdale states that it received Proposed AssessmentNo. 000179105 from the 

Department of Labor's Mine Safety and Health Administration ("MSHA") on March 18, 2009. 

In an affidavit, Wingdale's safety director explains that he was away at the time and did not 

personally receive the assessment until March 30. He subsequently was also away from the mine 

on travel the first week of April, and states that he neglected to act upon the assessment 

immediately after he returned. He mailed the contest form, indicating Wingdale's intent to 

contest penalties a_ss®iated with seven citations, six days too late. Soon after, the operator paid 

the other proposed. penalties. 

The Secretary of Labor opposes Wingdale's request to reopen the proposed assessment. 

. She c~aracterizes Wingdale' s procedures for responding to assessments as inadequate, and 

argues that inadequate or unreliable internal office procedures do not constitute the exceptional: 

circumstances required for reopening. 

Having reviewed Wingdale' s request to reopen and the Secretary's response, we conclude 

that Wingdale has failed to provide a sufficiently detailed explanation for its failure to timely 

contest the proposed penalty assessment. The safety director's generalized excuse that he did not 

receive the assessment uri.til March 30, 2009, due to his "travel and work schedule" is not 

sufficient to warrant relief. Moreover, he admittedly received the assessment on or about March 

30, 2009. He thus became personally aware of the ,assessment well before the April t.7 deadline, 

for contesting it, but offers ohly the excuse 'that .he was traveling on business during the first. ; 

. . week of April. This fails to explain why he did not contest the penalzy prior to the deadline, .· 

. dμring the period in Apnl when he .was .not traveling. · 

31 FMSHRC 1308 
Wingdale's submission does not provide the Commission with an adequate basis to 

justify reopening. Accordingly, we deny without prejudice Wingdale's request. 1 See e.g., 

Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008). If Wingdale submits another 

request to reopen the case, it should explain with specificity why the safety director's work and 

travel schedule between March 18 and March 30 precluded action on the assessment, and why he 

did not contest it after the end ofthe first week in April when he returned from his travel. 

Robert F. Cohen, Jr., Commissioner 

1 Our dissenting colleague lists ten recent cases in which we have granted reopening after 

MSHA's proposed assessments have become final under section 105(a) because of the failure by 

operators to timely contest the proposed assessment. Our colleague claims that the information 

provided by the operators in most, if not all, of these cases was ''much less detailed" than the 

information submitted by Wingdale here. Slip op. at 4. We respectfully disagree, and find the 

cases to be distinguishable on various grounds. See, e.g., J & T Servs., 31FMSHRC118 

(Feb.2009) (person responsible for filing contest form was killed in accident shortly after 

receiving proposed assessment, and contest was filed two days late). As our colleague 

acknowledges, in none of these ten cases did the Secretary oppose reopening. 

By contrast, in the present case, there are periods of time during which Wingdale's failure 

to act is unexplained. Consequently, we are not denying Wingdale's motion outright, but 

requiring it to fully explain why the proposed assessment was not contested timely. 

31 FMSHRC 1309 
Commissioner Duffy, dissenting: 

I would not deny the operator's request to reopen but would instead grant reopening. 

While the majority's denial is without prejudice, and thus leaves the door open for the operator to 

file another request to reopen, I am not sure what would be gained by requiring its safety director 

to account for his comings and goings during March and April of this year. The motion in this 

case presented an honest admission by the safety director that he knew he was under a deadline to 

file a notice of contest but that travel away from the office on two occasions during the relevant 

period resulted in his failure to timely file. The contest was filed six days late . 

. I am mindful that mine safety and health enforcement has st~ed up in intensity over the ... ,. 

past several years and ha5 resulted in a sharp increase in citations and orders issued. I am further · 

mindful that this intensity has markedly increased the day-to-day responsibilities of all 

concerned. This Commission, for example, has seen its yearly caseload increase from a level of · 

2,437 new cases in FY 2005 to 9,240 new cases in FY 2009. MSHA has been authorized to hire 

hundreds of new inspectors to ensure that all mandated inspections of surface mines (twice 

annually) and all underground mines (four annually) are conducted. The duties of those charged 

with complying with the Mine Act and its standards are being stretched as well. 

These circumstances do not absolve .mine Qperators .from .Promptly asserting their rights 

and carrying out their responsibilities in cbntestirig 'Citations and penalties under the Act's · · " : , 

procedural requirements, and the Commission has recently been looking at requests to reopen· , •. 

with a more critical eye than in the past. We have· gone·so far as to institute a rulema.king in an.: 

·.,attempt t0; set criteria and standards for determining when granting a request to reopen a . 

proceeding is appropriate. 

In the meantime, and given the circumstances outlined above, I find that a six-day delay 

in filing a penalty contest that is honestly admitted as having occurred due to press of business· 

falls under excusable neglect. We have of late granted a number of requests to reopen where the 

notice of contest was submitted to MSHA just a few days late. Compared to the information 

provided in support of the request to reopen in this case, the information provided by the 

respective operator in most if not all of each of those other cases was much less detailed 

regarding what, specifically, prevented the operator from filing a notice of contest at any time 

during the 30-day period after the penalty assessment was received.1 

1 See, e.g., Ruscat Enterprises, Inc., 31 FMSHRC 112 (Feb. 2009); Oak Grove Res., 

LLC, 31 FMSHRC 115 (Feb. 2009); J & T Servs., 31 FMSHRC 118 (Feb. 2009); Clean Energy 

Mining Co., 31FMSHRC370 (Apr. 2009); Lueders Limestone, LP, 31FMSHRC386 

(Apr. 2009); Black Butte Coal Co., 31 FMSHRC 400 (Apr. 2009); Mosaic Phosphates Co., 

31 FMSHRC 504 (May 2009)~ Alex Energy, Inc., 31 FMSHRC 540 (May 2009); DickensonRussell Coal Co., 31FMSHRC587 (June 2009); West Virginia Mine Power, Inc., 31 FMSHRC 

600 (June 2009). 

31FMSHRC1310 
While it is true that in those cases the Secretary did not oppose reopening, she, like the 

majority, provides no explanation for treating this case differently, other than that the safety 

director appears to have admitted there were times during the 30-day contest period when he 

could have submitted the form. The Commission has never required a detailed accounting of 

what prevented an operator from submitting a notice of contest throughout the 30 days in which 

it had to respond to an assessment, and no reason for the Commission to do so has been advanced 

in this case. 

Consequently, I cannot agree with the majority that relief in this instance should be 

contingent upon the operator's submis~ion of a greater amount of information than it has already 

submitted. In additional; I am doubtful that the safety director can say much more than he did 

when the request to reopen was filed over five months ago. 

31 FMSHRC 1311 
Distribution: 

Mark N. Savit, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202_ 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

HOO Wilsori Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. D.ept. Of Lal>or 

llOO·Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1312 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

. ADMINISTRATION (MSHA) 

v. 

Ill OHLAND MINING COMP ANY 

601 NEW JERSEY AVENUE; NW 

SUITE9500 

WASHINGTON, DC 20001 

November 30, 2009 

Docket No. WEV A 2009-110 

A.C. No. 46-08693-145240 

Docket No. WEV A 2009-688 

A.C. No. 46-08693-164121 .. · 

Docket No. WEVA 2009-689 

A.C. No. 46-08693-167069 

Docket No. WEVA 2009-1037 

A.C. No. 46-06558-169988 

BEFORE: Jordan, Chait:man; Puffy, Young~ and Cohen, Commissioners .. --· - ·... . '. . 

ORDER 

. BY: Duffy, Young, and Cohen, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On October 14, 2008, the Commission received from 

Highland Mining Company ("Highland") a motion made by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). On January 21, 2009, the Commission received two more such 

motions from Highland, and on March 25, 2009, the Commission received a fourth motion. 1 

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 WEV A 2009-110, WEV A 2009-688, WEV A 2009-689, and WEV A 

2009-1037, all captioned Highland Mining Co., and all involving similar procedural issues. 

29 C.F.R. § 2700.12. 

31FMSHRC1313 
With respect to Docket No. WE.VA 7009-110, on April l, 2008, the Department of 

Labor's Mine Safety and Health Adrnfuisti:aiion ("MSHA") issued proposed penalty assessment . 

No. 000145240 to Highland. In its niotion to reopen the assessment, Highland acknowledges 

that a security guard, no longer employed by Highland, signed for the package containing the 

assessment. Highland states that the security guard left the package in the guard house and that it 

was never seen again. Highland further explains that it learned of its delinquency with respect to 

the assessment aroun4 July 15, 2008, when it received a letter from MSHA. It did not file a 

motion to reopen for another three months. 

With respect to Docket No. WEV A 2009-688, on September 30, 2008, MSHA issued 

proposed penalty assessment No. 000164121 to Highland. The record indicates that the propqsed 

' · penhlfy assessment was signed for by the company receptionist but ·was subsequently lost within 

the operator's internal mail system and never delivered to Highland's safety direct9r for 

processing. Highland's motion describes the procedures the receptionist was to have followed. 

After receiving a notice from MSHA dated December 30, 2008, stating that payment on the 

proposed assessment was delinquent, the safety director promptly investigated the matter and 

· notified counsel, who filed a motion to reopen on January 21, 2009. 

With respect to Docket No. WEV A 2009-689, on October 28, 2008, MSHA issued ,; 

proposed penalty assessment No. OOQl ~706~ ~ !Jighland. Highland states that the proposed. 

penalty assessment was misplaced on the desk of the operator's safetY director, Jason.Jude; and 

that, as a result, Highland inadvertently failed to tr~,mit the proposed penalty ass.essment to · 

counsel for the· filing of a contest. After c:liscovering·the mistake, the operator states that it : ·· 

immediately transmitted the. matter to counsel •. who submitted the contest to MSHA ;that same · .. 

day. By letter dated December 23, 2008, MSHA ·rejected the submission M witimely. The , 

. 9perato:r filed a motion to reopen on January 21, 2009. 

With respect to Docket No. WEV A 2009-1037, on December 2, 2008, MSHA issued 

proposed penalty assessment No. 000169988 to Highland. Highland states that the proposed 

penalty assessment was misplaced on the desk of the operator's safety director, Lewis Sheppard, 

and that, as a result, Highland inadvertently failed to transmit the proposed penalty assessment to 

counsel for the filing of a contest. After the operator received a delinquency letter from MSHA 

dated February 26, 2009, operator's counsel filed a motion to reopen on March 25, 2009. 

The Secretary only opposes the reopening of the first assessment that Highland seeks to 

reopen. She opposes reopening on the ground that the operator has conceded that it had no 

standard practice or procedure for deliveries to the guard house and has failed to explain why it 

waited three months to file a request for reopening after learning of the delinquency. The 

Secretary does not oppose reopening the other three assessments.2 

2 We consider the Secretary's position in the three cases in which she does not oppose 

reopening in light of the provisions of the Informal Agreement between Dinsmore & Shohl 

Attorneys and Department of Labor - MSHA - Attorneys Regarding Matters Involving Massey 

31FMSHRC1314 
We have held that, in appropriate;: circumstances .. w~ possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

A. Whether Highland Demonstrated Good Cause for Failing to Timely Contest the Penalties 

1. Assessment No. 000145240 

Having reviewed Highland's motion and the Secretary's response,' we deny the motion 

with prejudice. We have held that an inadequate or unreliable system for delivering internal .mail 

does not constitute inadvertence, mistake or excusable neglect so as to justify the reopening of an 

ass'dssment·which has become final under section JOS.(c) ofthe Mine, Act. Pinnacle;Mining Co.-, 

i30 FMSHRC1'06i (Dec .. 2008); Pinnacle Mining:do., 3:0 EMSHRC 1066 (Deei 2008);:.ree. GitJb.s 

v. Air Canada; 810 F. 2d 1529, 1537-38· (1 lth Cir~ 1987){h,olding that default:caused by failure ·., 

to establish minimum procedural safeguards for determining that action in response to summons,:. 

arid cottiplaintwas taken does not.constitute default through excusable neglect). The:Secretary > . . . . 

cottectly poilits out that Highland concedes that '1here was no standard practice or p.rocedure :for.~ . -

mail and packages delivered to the guard house." Mot. at 2. However, Highland's motion also, · 

indicates at another point that guards were responsible for delivering packages that they received. 

to the business office or addressee within the company. Id. In light of Highland's concession 

and its apparently inconsistent explanation of its procedtires~ we conclude that it has failed to 

establish good cause for reopening the. proposed penalty assessment. 

Energy Company Subsidiaries" dated September 13, 2006. That agreement was in effect when 

the Secretary filed her responses. Therein, the Secretary agreed not to object to any motion to 

reopen a matter in which any Massey Energy subsidiary failed to timely return MSHA Form 

1000-179 or inadvertently paid a penalty it intended to contest so long as the motion to reopen is 

filed within a reasonable time. Thus, we assume that the Secretary was not considering the 

substantive merits of a motion to reopen from any Massey Energy subsidiary so long as the 

motion was filed within a reasonable time. Such agreements obviously are not binding on the 

Commission, and the Secretary's position in conformance with the agreement in this case has no 

bearing on our determination on the merits of the operator's proffered excuse. The Commission 

has been informed that, since the time the Secretary filed her responses, she has rescinded the 

agreement. 

31 FMSHRC 1315 
2. Assessments Nos. 000164121. 000167069. ap.d 000169988 

The three assessments were issued in a period of a little over two months, and Highland 

has provided a different reason for its failure to timely respond to each. While this could be a 

series of random mistakes, it could also be an indication of inadequate procedures. We are 

particularly concerned that in late December 2008 Highland was put on notice by MSHA that it 

had failed to timely r~pond to Assessment Nos. 000164121 and 000167069, yet Highland 

nevertheless failedto timely respond to still another assessment, No. 000169988 . 

. Consequently, we hereby deny the motions to reopen these three assessments, but without 

prejudice. Should Highland renew its reopening requests, it must do so within 30 d~ys, and fully 

explain the circumstances in the three failures to timely contest the proposed assessments. It 

must also address what it has done to ensure that it does not misplace penalty asse§sments in the 

future and to ensure that it responds to them in a more timely manner, in order to avoid a repeat 

of the mistakes it outlined in its four motions. 

B. Highland's Promptness in Seeking Rwpening 

Under_ Rule 60( c ), a motion to reopen, regardless of its merit, is only granted if it is filed . 

within aieasonable,time. Jn the context of penalty;,assessments,Jn<eonsidering whether an,, · ; · 

'Opei.ator has unreasonably delayed in filing a motion if~. reopen'.; W:e-,find relevant the,a,nountof., 

time: tlult has, passed bet\veen an operator'·s rebeipt of a delihqrieney:notice or other notification , 

from MSHAand the ·operator's filing of its motion to!reopen. SeeJ e.g., Left Fork Mining Co., 3 L: 

FMSHRCs,n1(Jan.2009). . ; .. : ~ ., ; . ' : . . ; : ··:".'· ... 

::: Here~ with.regard to the firstassessment,·Highlandfails to:explain why, after it learned of , 

the delinquency, it waited three more months before filing its request to reopen. 3 In contrast, · 

with respect to the other three assessments, Highland acted promptly, filing each motion to · 

reopen within 30 days after learning that it had failed to file a timely contest. 

In the future, to save time and conserve its resources, the Commission will ordinarily 

analyze the question of whether the request to reopen was filed in a reasonable time in the 

following manner. Motions to reopen received within 30 days of an operator's receipt of its first 

3 The amount of time is especially relevant, because the Secretary's response raised that 

issue, and Highland did not file a reply providing an explanation. We encourage parties seeking 

reopening to provide further infonnation in response to pertinent questions raised in the 

Secretary's response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June 

2008). Accordingly, where the Secretary raises the issue of the delay between receipt of a 

delinquency letter and the filing of the request to reopen, an operator who does not explain why, 

after it was informed of a delinquency, it took as long as it did to request reopening, does so at its 

peril. 

31FMSHRC1316 
notice from MSHA that it has failed to timely file a notice of contest will be presumptively 

considered as having been filed within a reasonable amount of time. 

Motions to reopen filed more than 30 days after receipt of such information from MSHA 

should include an explanation for why the operator waited so long to file for reopening. The lack 

of such an explanation is grounds for the Commission to deny the motion. 

In addition to bemg prompt in filing a motion· to reopen, an operator must also .set forth an 

adequate explanation of the reasons for its delinquency, as we have previously held. 

~ 

\ 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1317 
Chainnan Jordari, concurring and dissenting: 

I agree with the majority that the. motion to reopen in Docket No. WEV A 2009-110 

should be denied with prejudice. However, unlike my colleagues, I would also deny with 

prejudice the motions in the remaining three dockets. 

A review of the four motions submitted by the operator reveals a system that fails to give 

appropriate priority to proposed penalty assessments sent by MSHA. The four cases before us 

involve deliveries of proposed assessments that occurred from April 2008 until December 2008, 

an eight month time frame. During this period problems occurred at every stage of the operator's 

internal mail system. For example, in Docket No. WEVA 2009-110, the assessment was 

delivered to the guard house but apparently never went further. In Docket No. WEVA 2009-688,: 

the safety director states that he never received the proposed assessment and offers only the 

general speculation that it was lost or misplaced after the receptionist signed for the delivery. 

In Docket Nos. WEV A. 2009-689 and 2009-1037, the safety directors did receive the 

assessments. But even that modest success did not result in timely contests of those proposed 

penalties. In the first case, the safety director declares that, in completing the contest, he was 

interrupted by other job duties. Jude Aff. at 2. In the· second case, a different safety directQr 

states that he was interrupted while completing the contest beca~e he."had to address other 

important company matters as part of [his] job duties/~ Sheppard Affi··at 2 .. These explanations 

do.not rise to the l~vel of''mistake, inadvertence, or excusable negleet"; a safety-director will 

always have a multitude of tasks, and the mere ex~stence of other job,duties does not warrant 

relief. 

In sum, indifference, as opposed to inadvertence, would .appear to more accurately 

describe the underlying reason for Highland~s pattern· of untimely contests, and constitutes 

grounds for denying its motions to reopen in these cases. ·See Rogers v. Hartford Life & Accident 

Ins. Co., 167 F.3d 933, 938-39 (5th Cir. 1999) (finding that the district court did not abuse its 

discretion in refusing to set aside default judgment when a failure to establish minimum internal 

procedural safeguards was at least a partial cause of company's failure to respond to complaint). 

31FMSHRC1318 
Distribution: 

Max L. Corley, ID, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 6QO 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA · -

U.S. Dept. Of Labor 

HOO Wilsom. Blvd., 25th Floor 

Arlington, VA 22209•3939 · 

Chief Administrative Law Judge Robert J. Lesnick 

Federal· Mine Safety & Health Review Commission 

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

·Washington, D.C. 20001-2021 · 

31FMSHRC1319 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BANNER BLUE COAL COMPANY 

SUITE9500 

WASHINGTON, DC 20001 

December 3, 2009 

Docket No. VA 2009-3 

A.C. No. 44-03317-153866 

Docket No. VA 2009-4 

A.C. No. 44-06685-153869 

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

ORDER 

BY: . Jo~. . . ChaimiC1n; Duffy and Young, Gommissi~ners 

This matter arises under the Federa1Mfue'$afety ~d Health. Apt 0(1977, 30, U.S.C .. 

§ 801 et seq. (2006) (''Mine Act''). On October)., 2008, the Colliiniss~on·received from Banner 

Blue Coal Company (''Banner Blue") requests to reopen two penalty assessment that had becoine 

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

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

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

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

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

On June 17, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued two separate proposed penalty assessments to Banner Blue. Banner Blue, 

however, did not file notices of contest with MSHA until August 22, 2008. Banner states that 

one reason for the late filing ofits contests was the placement, in error, of an internal date stamp 

of"July 25, 2008," on each of the proposed assessments by Kristy Hurley, a secretary with 

Banner Blue's parent company, although the assessments were actually received a month earlier. 

Banner Blue also contends that MSHA's change in delivery methods from the use of certified 

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

consolidate docket numbers VA 2009-3 and VA 2009-4, each captioned Banner Blue Coal Co., 

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

31 FMSHRC 1320 
mail to the use of Federal Express delivery had disrupted its internal processing system for 

proposed assessments. 2 · 

The Secretary opposes reopening on the ground that the parent company's safety director 

- who ultimately reviewed the assessments and directed the company's counsel to contest certain 

of the penalties in each assessment - should have noticed the June 17, 2008, issuance date on the 

assessments, investigat~d the discrepancy with the internal date stamp, and discovered that the 

assessments had actually been received on June 24. The Secretary also points out that MSHA 

had changed its delivery methods approximately nine months before Banner Blue received the 

proposed assessments. · 

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

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

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

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

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

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

§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal 

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

harsh femedy and that, ifthe defaul~g, p3:11Y pan μiake a showing of good cause for a failure to.,. 

timely respond, the case may be reopened and' appropriate pro~eedings: oif the merits permittecJ; ... 

See Goalfrep. Servs.,lnc., 17FMSHRC1529,lS~O(S~t 1995). 

2 Banner claims that this change resulted in assessments going first to its president's 

secretary rather than directly to Ms. Hurley in the Engineering Department. However, documents 

submitted by the Secretary indicate that Ms. Hurley signed for the Federal Express deliveries of 

the assessments at issue here. 

31FMSHRC1321 
Having reviewed Banner Blue's requests and the Secretary's response, in the interests of 

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

of whether the alleged erroneous date-stamping of the assessments constitutes good cause for 

Banner Blue's failure to timely contest the penalty proposals and whether relief from the final 

orders should be granted. 3 If it is determined that such relief is appropriate, this case sball 

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

3 In our opinion, a judge would be in a better position to consider those facts raised by 

the Secretary and our dissenting colleague, Commissioner Cohen~ that cast doubt whether Banner 

Blue's failures to timely file notices of contest can be attributed to the erroneous date-stamping. 

31 FMSHRC 1322 
Commissioner Cohen, dissenting: 

This case involves two penalty assessments - 16 enforcement actions with penalties 

totaling $44,629.00. My colleagues would remand the case to the Chief Administrative Law 

Judge for a determination of whether good cause exists for Banner Blue's failure to timely 

contest the penalty proposals. I respectfully dissent because the facts offered by Banner Blue in 

its motions fall far shoit-of demonstrating good cause for reopening, especially in light of the 

criteria of mistake, inadvertence, surprise, or excusable neglect contained in Rule 60(b) of the 

Federal Rules of Civil Procedure. 

Banner Blue is controlled by Wellmore Coal Company ("Wellmore"). Mot. at 2. 

According to the motions, Wellmore has a central mine management office which handles the 

operations of24 mines. Id. According to the motions, Wellmore receives "foot higl}. stacks of 

mail that [come] in each day for all ofWellmore's 24 mining operations." Id. According to the 

motions, Wellmore employs one secretary who is ''without ample storage" to handle this volume 

of mail. Mot. at 5. 

The record shows that the two proposed assessments, both dated June 17~ 2008, were 

received by Wellmore on June 24, 2008.1 However, the assessm.ents bear a ''Wellmore Coal 

·company- Engineering Department" date stamp .. of July25~, 20()8. ,Accoliding to the':motions, 

Banner Blu~· s counsel ''processed" the assessmentsfon Arigiist.22, 2008: Mot.- at 1. ,After .•: · 

MSHA notified Banner Blue's counsel that the contests of the assessments were not filed timely, . 

counsel submitted these motions to the Commission on September 30~ 2008. 

: . '. 

Banner Blue advances three possible explanations fotits.failure to timely contest the. -.: ,, 

penalty assessments at issue. Its first explanation is that MSHA changed its delivery metliod 

·from: certified mail to Federal Express. According to the motions, "MSHA' s change in the 

mailing procedure ofMSHA 1000-179 forms from certified mail to Federal Express foiled a 

well-laid procedure for processing the forms, and certainly either caused or at least exacerbated 

other potential mistakes." Mot. at 5-6. MSHA had sent a notice to operators explaining the new 

mailing procedure, and stating that it would go into effect on September 17, 2007. S. Opp. 

at 3 n.3. The proposed assessments in this case were received by Wellmore on June 24, 2008, 

over nine months after this change. A company with the resources and skill to administer 24 

separate mining operations presumably has the ability, within nine months, to adjust its internal 

procedures to accommodate MSHA' s change in mailing methods. 

The second explanation provided by the operator is that because of the change in 

MSHA's delivery system, the assessments did not go to Wellmore's Engineering Department 

secretary, as previously, but instead wer~ sent to the President's secretary, who would forward 

them to the Engineering Department secretary. Because the President's secretary "did not realize 

1 This fact was not indicated by Banner Blue in its motions. The Commission was 

furnished evidence of the actual delivery date of the assessments by the Secretary in her response. 

31 FMSHRC 1323 
the urgency of the mailing," the operator claims that she did not open them immediately. Mot. at 

2. Then, according to Banner Blue, when tlie Engineering Department secretary received the 

assessments from the president's office and date-stamped them, she would have stamped the 

forms as received on the day they came across her desk. Id. 

Banner Blue's essential problem with this explanation is that the record shows that it did 

not happen. The Secr_etary provided the Commission with Federal Express delivery records 

showing that the two assessments issued on June 17, 2008 were signed for by "K. Hurley" on 

June 24, 2008. The operator's motions contain affidavits from Kristy Hurley, who identifies 

herself as the secretary for the Engineering Department. Thus, one must conclude that these 

assessments never went to the President's secretary, but instead went to the Engineering 

Department seeretary who normally processed the assessment form. 

< 

Banner Blue's third explanation is that the Engineering Department secretary had recently 

·· obtained a new date stamp and may have incorrectly stamped July 25 on the assessments.· Id. at 

3, 5. However, Ms. Hurley's affidavit states that she obtained the new date stamp "in early J1Ule 

of 2008." Hurley Aff. at 2. It is unclear whether the operator is asserting that she was datestamping July instead of June on the "foot-high stacks of mail that came in each day'' for 

·approximately two weeks and that no one noticed, or whether she was date-stamping the mail 

a.Ccurately:fotthose two weeks and only these assessm~ts .were sfatriped July 25 -instead of June24~ · ·· 

Another reason why the third. explanation is not acceptable .is that, as the Secretary points 

out, it is not an excuse for the Safety Director, Robert Litton, to rely on the date stamp on the 

.assessmentfonnswhen the forms themselves clearly.indicated··the date of issuance as.June17, 

· 2008. A prudent safety director who :routinely processed numerous assessments would look at. , · · 

the date of the assessment and - if it was markedly different from the date stamp (i.e., 3 8 days) ~ 

make some inquiries. I note that on all the assessments someone has written instructions within 

an inch of the printed date of June 17, 2008. 

In its motions, the operator acknowledges that it had·"a systemic problem in the entire 

MSHA [penalty assessment form] processing system at the mine office." Mot. at 1. As noted 

above, Wellmore was responsible for the operation of 24 mines, with a central mine management 

office that processed "foot high stacks of mail that came in each day'' for all of these operatioBS. 

Mot. at 2. The single secretary who was charged with processing this mail ''without ample 

storage" was also responsible for managing the "forms, plans, and files for the 24 mines 

controlled by the Wellmore division." Hurley Aff. at 1. In other words, this case is not about an 

operator for whom MSHA's change in the mailing of the assessment forms to Federal Express 

nine months earlier "foiled a well-laid procedure." Mot. at 5-6. It is not about the President's 

secretary who "did not realize the urgency of the mailing." Id. at 2. It is not even about the 

Engineering Department secretary having a wrong date on her stamp. It certainly is not "a series 

of problems outside of any one person's control." Id. at 5. What this case involves is a company 

which has one person processing a foot-high stack of mail, affecting 24 separate operations, 

31 FMSHRC 1324 
every day, in addition to her other responsibilities. This is not mistake or inadvertence. It is 

about a large operator (or at least a large·controller) which set up a system that, at some point, 

was bound to fail. 

The Commission has previously emphasized that "[r]eliefunder Rule 60(b) should 

generally not be accorded to an operator who creates and condones a system which predictably 

will result in missed deadlines." Pinnacle Mining Co., 30 FMSHRC 1061, l 062 (Dec. 2008); 

Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008). In the Pinnacle cases, we denied 

relief from final orders when the operator "failed to create a mechanism to ensure that it would 

routinely and effectively receive mail when it was delivered." 30 FMSHRC at 1062; 30 

. FMSHRC at l 067. 

Moreover, the federal courts have recognized, pursuant to Rule 60(b)(l) that :'where 

internal procedural safeguards are missing, a defendant does not have a 'good reason' for failing 

to respond to a complaint." Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 935-36 (11th Cir. 2007) 

(collecting cases); see 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d 

§ 2858 n.22 (3d ed.). As the 11th Circuit has noted, "[ d]efault that is caused by the movant' s 

failure to establish minimum procedural safeguards for determining thataction in respond to a 

[complaint] is being taken does not constitute default through excusable neglect." Gibbs v. Air 

·Canada, 810'F.2d' 1529, 1.537 (1 lth Cir~ 19&7); National Railr.oad Passenger Corp; v.-Patco. ·. 

Transport, Inc., 128 Fed. Appx. 93, 95 (11th.Cir. 2005) (citation.:omitted). Similarly, the:7th: .. 

Circuit has held that where a party's "internal-procedures simply broke do\vn", the party's failure · 

to answer a complaint was not excusable under Rule 60(b )(1 ). North Cent. RL Laborers' Dist .. 

Counci/.v. S.J. Groves & Sons Co., 842 F. 2d-164, 166-67 (7th Cir. 1988)(default n()texcusable . 

where corporation's in-house counsel -staff of two. attorneys wa5 reduced to one because other 

attorney was disabled, and remaining attotiiey overlooked the complaint in the resulting pressure,, 

confusion, and increased workload). 

An excellent analysis of the issue was set forth by Judge Haynsworth, concurring in Park 

Corp. v. Lexington Insurance Co., 812 F.2d 894 (4th Cir. 1987). In this case, the court held that 

the unexplained disappearance of the summons and complaint from the defendant's mail room 

did not constitute grounds for relief from the default judgment under Rule 60(b)(l). Judge 

Haynsworth wrote a separate concurring opinion because he thought that the majority's standard 

was too stringent. The Judge focused on the issue of whether a party "maintains adequate·· ·· · 

internal controls designed to capture and record incoming legal papers and to get them to the 

responsible official for an appropriate response," and stated that where such adequate internal 

controls exist, "a district court should not deny Rule 60(b) relief simply because the party cannot 

explain how the particular papers were lost." Id. at 898. Nevertheless, Judge Haynsworth 

concurred with the majority because "Lexington offered no evidence of procedures in the mail 

room by which the person signing the receipt for the registered or certified mail insures that the 

papers received in the mail room are recorded on the log and transmitted to the appropriate legal 

or claims department." Id. He concluded: "The best of systems sometimes suffers an occasional 

31 FMSHRC 1325 
breakdown. When it does, the neglect should be treated as excusable, but sloppy handling of 

papers by which legal actions are commenced is.inexcusable." Id. 

This case does not need to be remanded to a judge for a determination as to whether relief 

should be granted. The operator's submissions reveal, as it admits, a "systemic problem." Mot. 

at l. However, it is not, as the operator contends, "a series of problems outside of any one 

person's control." Mot. at 5. Rather, it is a poorly-constructed, inadequately-staffed and 

apparently unsupervised system which was, sooner or later, bound to fail. That does not 

constitute "inadvertence," ''mistake," or "excusable neglect," and does not constitute a showing 

of good cause for the operator's failure to timely respond to the penalty assessments. 

Consequently, I would deny the motions. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1326 
Distribution: 

Robert H. Beatty, Jr., Esq .. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

· . Chief Administrative Law Judge Robert J. Lesnick 

Federal Min~ Safety & Health Review Commission· 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1327 
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 

December 10, 2009 

Docket No. CENT 2010-3.0-M 

A.C. No. 16~00970-194172 

MORTON SALT DMSION/MORTON 

INTERNATIONAL, INC. 

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissiontll's 

ORbER 

BY rim COMMISSION: ,·,· 

This matter arises under theF¢eralMin~.Safety and Health Act of 1977, 30 q.s.c. · . , · 

§ 801 et seq. (2006) ("Mine Act"). On October 15, 2009, the Cotrnriission received from Morton 

Salt Division/Morton Illternational, Inc. ("Morton") a motion by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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 

31FMSHRC1328 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On August 12, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000194172 to Morton, proposing penalties for a 

number of citations and orders that had been issued to the operator during the previous two 

months. Morton states_that it had earlier indicated its intent to contest one of the orders by 

requesting and receiving a conference on it and three citations with the local MSHA office. 

Morton explains that when the assessment was received, it mistakenly did not include the penalty 

for the order among those penalties it was contesting, and instead paid that penalty amount along 

with oth<?fs .it. was not contesting. The Secretary states that she does not oppose Morton's request 

.. ,fo reopen the' assessment so that it can contest the penalty associated with the order. . . . 

Having reviewed Morton's request and the Secretary's response, in the interests of 

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

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

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

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

t .• ·; .. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1329 
Distribution: 

Donna Vetrano Pryor, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202-

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

f\1yraJames,Chief 

Office of Civil Penalty Compliance 

f\1SHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Les,:iick 

. Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 TMSHRC 1330 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JOHN R. HURLEY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 10, 2009 

Docket No. VA2010-7 

A.C. No. 44-06685-182175 A 

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

ORDER 

BY THE coMMlsSION: 

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

§ 801 et seq. (2006) ("Mine Act''). ()n October 5, 2009, .the Commission received a motion by· 

counsel seekiiig to reopen a penalty assessment against John R. Hurley under section· 110( c) of . 

the Mine Act, 30 U.S.C. § 820( c), that may have become a final order of the Comniission .. 

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

Under the Commission's Procedural Rules, an individual charged under section 1 lO(c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 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. 29 C.F.R. § 2700.27. 

On April 14, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 00182175 A to Hurley relating to Citation 

No. 6629283, which had been issued on December 19, 2007. The record indicates that MSHA 

sought to deliver the assessment by Federal Express, but Hurley never received the assessment, 

despite his efforts to do so. Soon after Hurley received a delinquency notice from MSHA 

regarding the assessment, his counsel made arrangements to obtain a copy of the assessment 

from MSHA and immediately filed a notice of contest. The Secretary of Labor does not oppose 

reopening in this instance. 

31FMSHRC1331 
The record indicates that Hurley never received proper notification of the proposed 

penalty assessment as required under Cotilinission Procedural Rule 25. 1 Under the circumstances 

of this case, we conclude that Hurley timely notified the Secretary that he wished to contest the 

proposed penalty once he had such notice. 

Because the proposed penalty assessment did not become not a final order of the 

Commission, we wilLtreat the motion to reopen as moot. We remand this matter to the Chief 

Administrative Law Judge for assignment to a judge. This case shall proceed pursuant to the 

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

28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this 

ordei:. See 29 C.F.R. § 2700.28. 

Robert F. Coh~ Jr., Commissioner 

1 Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall 

notify the operator or any other person against whom a penalty is proposed of the violation 

alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days· 

to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R. 

§ 2700.25. 

31FMSHRC1332 
Distribution: 

Robert H. Beatty, Jr., Esq. 

Dinsmore & Shohl, LLP 

21 S Don Knotts Blvd., Suite 310 

Morgantown, WV 26..501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

MyraJaIIles,Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

. Chief Adminisntive Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Conlinission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1333 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OFLAaOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOLVAY CHEMICALS 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 10, 2009 

Docket No. WEST 2009-1099-M 

A.C. No. 48-01295-175586 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federat Mine Safefy.'and Health A.ct of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On JuIY 13, 2009, the Commission reeeived from Solvay .. 

Chemicals ("Solvay") a letter from the company's Safety Superintendent seeking to reopen a . 

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

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC ?82, 786-89 (May 1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.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). 

31 FMSHRC 1334 
Solvay states that it checked the box on the original assessment form for Citation No. 

6420279, but that it was not noted. The Secretary states that a payment dated February 26, 2009, 

in the amount of $576, which paid all the proposed penalties except the proposed penalty that the 

operator seeks to reopen, was timely received at the Department of Labor's Mine Safety and 

Health Administration ("MSHA") Payment Processing Center in St. Louis, Missouri. However, 

the Secretary states that MSHA has no record of receiving the penalty contest form at its Civil 

Penalty Compliance OfEce in Arlington, Virginia. The Secretary does not oppose Solvay's 

request to reopen the proposed penalty assessment. 

Having reviewed Solvay' s request and the Secretary's response, in the interests of justice, 

w~ hereby reopen this matter and remand it to the Chief Administrative Law Judge (or further. 

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1335 
Distribution: 

Rowdy Heiser 

Safety Superintendent 

Solvay Chemicals, Inc. 

P.O. Box 117 

Green River, WY 82935 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty C<_>mpliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1335 ~ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMM.ISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BLUE HA VEN ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 10, 2009 

Docket No. WEVA2010-144 

A.C. No. 46-08581-188168 

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

ORDER 

BY THE COMMISSION: 

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

. § 801 et seq. (2006) (''Mine Act"). On October 27, 2009, the Commission received ftomlUue 

Haven Energy, Inc. ("Blue Haveri") a motion to reopen a penalty assessment that had;become a 

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

Under section l05(a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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). 

31 FMSHRC 1336 
On June 16, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000188168 to Blue Haven, proposing penalties for 

eight citations that had been previously issued to the operator. According to its motion, Blue 

Haven received the assessment, and its representative marked the form to indicate that it was 

contesting all the proposed penalties. The notice of contest was apparently mailed on June 27, 

2009, using certified mail. According to a copy of the on-line record of delivery submitted by 

Blue Haven with its motion, the envelope that was mailed was received by MSHA two days later. 

Nevertheless, the penalties were shown as delinquent on a separate, subsequent assessment, 

which caused Blue Haven to promptly file its motion to reopen. 

The Secretary of Labor states that, while she has no record of receiving the notice of 

contest, given the information provided by Blue Haven, she will accept the copy of the notice. of. 

contest included with Blue Haven's motion. The Secretary states in her letter dated 

November 17, 2009, that she will file a penalty petition within 45 days ofthat date: 

Having reviewed Blue Haven's motion and the Secretary's response, we find the request 

to reopen to be moot. This case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F:R Part 2700, and, per her statements, the Secretary's penalty petition 

shall be filed no later than January 4, 2010. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1337 
Distribution: 

James F. Bowman 

Blue Haven Energy, Inc. 

P.0.Box99 

Midway, WV 25878 -

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd:, Room 2220 · 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

. U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209.:.3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

. 60.l New 1~eyAyenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 1338 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RAY COUNTY STONE 

PRODUCERS, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 10, 2009 

Docket No. CENT 2010-88-M 

A.C. No. 23-02274-192621 

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

ORDER 

BY THE COMMISSION: 

' ' 

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

§ 801 et seq.' (2006) e'Mine Act,,). On October 28, 2009, the Commission received a request to 

reopen a penalty assessment issued to Ray County Stone Producers, LLC ("Ray County.~) that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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 

31FMSHRC1339 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On July 29, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000192621 to Ray County for three citations 

MSHA had issued to the operator on June 2, 2009. The request to reopen states that the 

employee who signed for the assessment when it was delivered never forwarded it for action by 

the operator. Ray County wishes to reopen the assessment so that it can try to reach a settlement 

of the penalties. The Secretary of Labor states that she does not oppose reopening in this 

instance. 

Having reviewed Ray County'.s request and the Secretary's response, we conclude that 

Ray County has failed to provide a sUmciently detailed explanation for its failure to .timely 

contest the proposed penalty assessment. Accordingly, we deny without prejudice Ray County's 

31 FMSHRC 1340 
request. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton 

Constr., 29 FMSHRC 569, 570 (July 2007). 1 · 

Robert F. Cohen, Jr., Commissioner 

1 "Without prejudice" means that Ray County may submit another request to reopen the 

assessment so that it can contest the citations and penalty assessments. In the event that Ray 

County chooses to refile its request to reopen, it should provide more specific information 

regarding why it did not file a notice of contest on a timely basis, and when it learned of the 

delinquency. Ray County should also specify which of the penalties it wishes to contest upon 

reopening. 

The request to reopen was sent by Earl Wilson, who describes himself as a "Safety 

Consultant." Commission Procedural Rule 3 provides that, in order to practice before the 

Commission, a person must either be an attorney or fall into one of the categories in Rule 3(b ), 

which include parties, representatives of miners, an "owner, partner, officer or employee" of 

certain parties, or "[a ]ny other person with the permission of the presiding judge or the 

Commission." 29 C.F.R. § 2700.J(b). It is unclear whether Mr. Wilson satisfied the 

requirements of Rule 3 when he filed the operator's request. We have determined that, despite 

this, we will consider the merits of the operator's request in this instance. However, in any future 

proceeding before the Commission, including further proceedings in this case, Mr. Wilson must 

demonstrate to the Commission or presiding judge that he fits within one of the categories set 

forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant 

to Rule 3(b)(4). 

31FMSHRC1341 
Distribution: 

Earl Wilson 

Safety Consultant 

Wilson & Assoc. 

10737 Miles St. 

Rolla, MO 65401 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S:Department of Labor, 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Co~pliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington., YA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

·. Washington, D.C. 20001-2021 

31 FMSHRC 1342 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

M & P SERVICES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 10, 2009 

Docket No. WEVA 2009-1983 

A.C. No. 46-09131-188689 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On September 29, 2009, the Commission received from .. 

M & P Services, ID.c. ("M & P'') a motion to reopen a penalty assessment that may have become 

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

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.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). 

31 FMSHRC 1343 
On June 18, 2009, the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued Proposed Assessment No. 000188689 to M & P, proposing a penalty for a 

citation that had been previously issued to the operator. According to its motion, M & P received 

the assessment, and its representative marked the form to indicate that it was contesting the 

proposed penalty. The notice of contest was apparently mailed on June 27, 2009, using certified 

mail. According to a copy of the on-line record of delivery submitted by M & P with its motion, 

the envelope that was l!!ailed was received by MSHA two days later. Nevertheless, M & P later 

received a notice from MSHA, showing the penalty as delinquent, which caused M & P to 

promptly file its motion to reopen. 

The Secretary of Labor states that, while she has no record ~f receiving the notice of 

conte8~ given the information provided by M & P, she will accept the copy of the notice of 

contest included with Blue Haven's motion. On November 17, 2009, the Secretary filed a 

petition for assessment of penalty in this case. · 

Having reviewed M & P's motion and th~ Secretary's response, we find the request to 

reopen to be moot. This case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1344 
Distribution: 

James F. Bowman 

M & P Services, Inc. 

P.O.Box99 

Midway, WV 25878 -

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick . 

. . Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1345 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

IO COAL COMP ANY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 14, 2009 

Docket No. WEVA 2007-293 

DECISION 

BY: Duffy, Young, and Cohen, Commissioners 

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

1977, 30 U.S.C. § 801 et seq. (2006) (''Mine Acf' or "A~t"), Administrative Law Judge David F. 

Barbour found a significant and substantial ("S&S")1 violation pf30 C.F.R. § 75.220(a)(l)2 buf 

did not find the violation to be a result of the operator's unwarrantable failure. 3 30 FMSHRC . 

847, 868-69 (Aug. 2008) (ALJ). The Secretary petitioned the Commission toteview the·: 

unwarrantable failure determination, and the Commission granted the petition. For the reasons 

that follow, we vacate and remand the judge's unwarrantable failure determination. 

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

§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and 

substantially contribute to the cause and effect of a ... mine safety or health hazard." 

2 30 C.F .R. § 75.220(a)(l }provides: ''Each mine operator shall develop and follow a 

roof control plan, approved by the District Man.ager, that is suitable to the prevailing geological 

·conditions, and the mining system to be used at the mine. Additional measures shall be taken to 

protect persons if unusual hazards are encountered." 

3 The unwarrantable failure terminology is taken from section 104( d)( 1) of the Act, 30 

U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by 

"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety 

standards." 

3lFMSHRC 1346 
I. 

Factual and Procedural Background 

A. Events of June 12 and 13. 2006 

IO Coal Company ("IO") is the operator of the Europa Mine, an underground coal mine 

located in West Virginia. 30 FMSHRC at 847-48; Gov't Ex. 11. IO is owned by Magnum Coal 

Company. Tr. 265. On the morning of June 12, 2006, Inspector Jack Hatfield of the 

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

inspection of the mine. 30 FMSHRC at 853. Hatfield examined the 005 Mechanized Mining , . 

Unit ("MMU") section, which consists of seven mining entries and encompasses approximately · 

2100 linear feet. Tr. 147. Hatfield was accompanied at times by General Mine Foreman Fred 

Thomas and at other times by Section Foreman Michael Jefferson. 30 FMSHRC at 853; Tr. 233-

34. 

Hatfield first checked the 005 MMU section for imminent dangers. 30 FMSHRC at 853. 

He testified that as he did, he noticed that the roof on the section contained surface cracks and 

other kinds of cracks, as well as unsupported kettle bottoms.4 Id. The men walked up the;. 

number 4 entry and then walked to the number 1 ·entry and across the face, at which point. : 

Ha~~l~. tr,ave~cr.I back to Ate muμbe,r 7 ~ntry. 14:. (citing Tr .. 190). ~ the inspector was p()inting 

out ¢onditions ·he considered unsafe, IO personnef illstille4. i«:lditional roof support .. Tr. 257; 339, 341. . . .. 

:·H~eld believed that IO was nof~omplyiitg vrith·its .roofcorttrol plan .. He issued a,·· . , 

sectic:m 104(d}(l) order,5 closing the sectioh.. 30 U.S.C. § 814(d)(l). ·1n the order, the inspector 

alleged 'that the 005 MMU section contaitied adverse roof conditions in the form of "multiple 

inadequately supported and unsupported surface cracks and kettle bottoms." Gov't Ex. 1. 

4 Kettle bottoms are "basically ... petrified tree trunk[ s] surrounded by a thin layer of 

coal." 30 FMSHRC at 851 n.4. The size of the kettle bottom depends on the size of the tree 

trunk. Id. Kettle bottoms are circular, oval or oblong with coal encrusted around the 

circumference. Tr. 37-38; R. Ex. 2. According to the Dictionary of Mining, Mineral, and 

Related Terms, 297 (2d ed. 1997) (American Geological Institute), a kettle bottom "may drop out 

of the roof of a mine without warning, sometimes causing serious injuries to miners." Eagle 

Energy, Inc., 23 FMSHRC 1107, 1108 n.2 (Oct. 2001). 

5 A Mine Act section 104(d)(l) order is issued during an inspection of a mine when 

MSHA finds an unwarrantable failure violation within 90 days of a prior issuance of a citation to 

that mine that was designated as both S&S and a result of unwarrantable failure. Under that 

order, the operator must "cause all persons in the area affected by such violation ... to be 

withdrawn from, and to be prohibited from entering, such area until an authorized representative 

of the Secretary determines that such violation has been abated." 30 U.S.C. § 814(d)(l). 

31 FMSHRC 1347 
In Hatfield's opinion, the conditions violated the mine's roof control plan, Safety 

Precaution No. 7, which stated: 

When adverse roof conditions are encountered[,] such as 

horsebacks, slicken-sided slip formations, clay veins, kettle 

bottoms, surface cracks, mud streaks or similar types of conditions 

in the mine roof, supplemental roof supports shall be installed in 

addition to primary roof support as appropriate in the affected area. 

Gov't Ex. f, 6 .. 

~ 

Mine Foreman Thomas was ''veriupset." Tr. 205. He called the Mine Superintendent, 

Tim Beckner, who met Inspector Hatfield as he was leaving. Tr. 363, 371-72. Beckner allegedly 

asked Hatfield to go back to the section with him, but Hatfield declined. Tr. 372-73. The Mine 

Superintendent called the Operations Manager and the Vice-President for Magnum Coal. Tr. 

373-74. At about 5:00 p.nl. on June 12, Beckner, Thomas, Doug Williams (the operations 

manager), and two mining engineers employed by Magnum Coal entered the 005 section. Tr~ 

268;,. 70:. They examined all the entries' and crosscuts on the section without physically walkiJig 

¢very one of them:· Tr. 269-70; 430.. · : · · · ·· ·. · · · '.1' ::.· 

'' 

On the. following morning, Inspeetor Hatfield arid MSHA Inspection Supervisor Terry 

Price returned fo the mine. ~r. 77. IO was in the process of putting up additional roof support. 

· Tr. 78. The. in5pectors determined that: the right side of the section could open to allow · . 

production butthat entries Nos. I; 2, and 3 needed more support and were to remain closed .. Tr .. · 

79-80. The order was terminated later. in the day. Tr. 80. 

B. . Prior Citations 

On May 1, 2006, Inspector Hatfield had issued Citation No. 7252337 to IO alleging a 

s~ction 75.220(a)(l) violation because of adverse roof conditions on the 004 MMU section of the 

Europa mine. 30 FMSHRC at 850. The conditions consisted of surface cracks, kettle bottoms, 

and mud streaks at several locations. Id.; Gov't Ex. 2. This citation was issued to former Mine 

Foreman Joe Glenn. Gov't Ex. 2. Fred Thomas was aware of its issuance. Tr. 209-10. 

On May 17, Hatfield had issued Citation No. 7252378 for another section 75.220(a)(l) 

violation for adverse roof conditions to Mine Foreman Thomas. 30 FMSHRC at 852; Gov't Ex. 

3. The citation involved unsupported kettle bottoms and surface cracks on the 006 MMU 

section. 30 FMSHRC at 852. After he issued the citation, Hatfield stated that he had reviewed 

the roof control plan, particularly Safety Precaution No. 7, with Thomas. Id. The company 

abated the condition by installing supplemental roof support. Id. 

31 FMSHRC 1348 
On June 5, Hatfield had issued Citation No. 7252411 to Thomas pursuant to section 

75.220(a)(l) concerning roof conditions Ori the 006 MMU section when he detected a large kettle 

bottom that was two feet in diameter and unsupported. Id.; Gov't Ex. 4. Hatfield testified that, 

after issuing the citation, he discussed kettle bottoms with company officials and told them they 

should pay more attention to the problem. 30 FMSHRC at 852; Tr. 47. 

On June 8, Hatfield had issued Citation No. 7252417 alleging a violation of section 

75.220(a)(l) to Thomas for another large unsupported kettle bottom in the 006 MMU section. 

30 FMSHRC at 852; Gov't Ex. 5. The citation stated: "This MMU has had this condition 

previously cited." Gov't Ex. 5. As with previous citations, Hatfield testified that he showed 

management officials a copy of the roof control plan, including Safety Precaution No. 7. 30 

FMSHRC at 852; Tr. 48. 

C. Judge's Decision 

IO contested the June 12 order, and a hearing was held before Judge Barbour. The judge 

found a violation of section 75.220(a){l) because he concluded that the Secretary had established 

· the .existence of multiple Inadequately supported kettle bottoms on the section. 30 FMSHRC at 

, 86S·-66;6 He also determined that the violation was S&S. Id. at 867-68. He found that the 

· violation was, serious because "if a miner were:struck by a falling kettle• bottom, serious injury. or .· 

death would most 1.ikely result." Id. at 868. · , . 

· However, the judge found that IO's lack of care was not.a result of unwarrantable failure. 

· Id. He reasoned that riot all kettle bottoms .were inadeqilately sup}X>rted or unsupported. Id.· · · . · . · 

Since some kettle bottoms in the cited area· were ad~uately supported, the judge· inferred that .. 

''there was not a wide-spread and reckless .. disregard of the requirements of the roof control plan.';· 

Id. Additionally, the judge stated that the foreman '.'sitμply misjudged some of the kettle 

bottoms" and that there was a genuine and good faith disagreement between the inspector and IO 

personnel as to what constituted a kettle bottom. Id. He concluded that the violation was due to 

the company's ordinary negligence. Id. at 869. In a footnote, the judge noted that the inspector's 

fmding of unwarrantable failure and high negligence may have been based on "personal pique," 

citing the inspector's testimony that he found the violation due to high negligence '" [b ]ecause 

[the inspector] talked to the operator on several occasions about the roof control plan and it 

seemed [he] wasn't getting anywhere with just writing a citation."' Id. at 869 n.18 (citing'ff; 

76). 

6 The judge found that the Secretary failed to meet her burden of proof with respect to 

surface cracks. 30 FMSHRC at 865. The issue of surface cracks is not before us. 

31 FMSHRC 1349 
IL 

Disposition 

The Secretary argues that the judge's finding that the violation was not a result of 

unwarrantable failure should be remanded to the judge for a proper application of the 

unwarrantable failure analysis. PDR at 11; S. Reply Br. at 3-4. She argues that the judge erred in 

five ways: (1) by ignoring the operator's history of previous section 75.220(a) violations, the 

degree of danger posed by the violative condition, and the length of time the violative condition 

existed; (2) by relying on the fact that ''not all" of the kettle bottoms were unsupported or 

inadequately supported; (3) by relying on a finding that section foreman Jefferson "tried" to meet 

the standard of care required of him; ( 4) by relying on a finding that there were "genuine and 

good faith disagreements" between the inspector and the mine personnel as to what ~mnstituted a 

kettle bottom; and (5) by speculating that the inspector may have acted out of "personal pique" 

in designating the violation in question an unwarrantable failure. S. Reply Br. at 1. 7 

IO responds that the judge's unwarrantable failure fact-finding should be upheld because 

record evidence supports the judge's determination that there were genuine and good faith 

disagreements between the inspector and IO personnel as to what constituted a kettle bottom. IO 

Br. at 12, 26-:29 .. : IO contends that, because ofits·good·.faithbeliefthat the roof·conditions in 

question were not kettle bottoms, most of the unwarrantable Jailure fac~ors are not re~cvant. Id. 

at 13, 22-24. Additionally, IO maintains that the four previous citations occurred in different · 

parts of the mine with different crews and;as a result, were not germane to the present 

unwarrantable failure analysis. Id. at 19, 26. Finally; IO 'Submits that the judge did not err 

because the record evidence supports .the conclusion :that ''p~r8onal pique" may have 1mproperly 

played a part in the inspector's unwarrantable determination. 1d. at 32.- · · · · 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814( d), and refers to more serious conduct by a:n operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); seealro Buck Creek"Coal, 

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

test). 

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

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

detennine if any aggravating or mitigating circumstances exist. Aggravating factors include the 

7 The Secretary designated her petition for discretionary review as her brief in this case. 

Sec'y letter dated 10/22/08. 

31FMSHRC1350 
length of time that the violation has existed, the extent of the violative condition, whether the 

operator has been placed on notice that greater efforts were necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation was obvious or posed a 

high degree of danger, and the operator's knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) .("Consof'); Cyprus Emerald Res. 

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

1999); Midwest Mate.rial Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 

FMSHRC 192, 195(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 ·. 

FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must 

be examined to determine if an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Consol, 22 FMSHRC at 353. The CommissiOn has made clear that it is 

necessary for a judge to consider all relevant factors, rather than relying on one to nte exclusion 

of others. Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 

FMSHRC 125, 129-36 (Mar. 2007) (remanding unwarrantable detennination for further analysis 

and findings when judge failed to analyze all factors). While ail administrative law judge may 

determine, in his discretion, that some factors are not relevant, or may determine that some 

factors are much less important than other factors under the circumstances, all of the factors must 

. be taken into.·consideration and at least noted bythejudge. ,·. 

· . •· . Because the judge did not address all the elements of the. dnwarrantable failure analysis, . 

we :Vacate his finding of no unwarrantable failure and remand for it':fuller discnssion that 

identifies and incorporates all the relevant elements and explains how each element affects his 

wwarrantable failure determination .. Commission Proced~al.Rule.·69(a) requires that a 

Commissionjudge's decision "shall include all findings .. offact:and.conclusions oflaw,.and the· 

reasons or bases for them, on all the material issues. of fact, law or discretion presented by the 

record." 29 C.F.R. § 2700.69(a). As the D.C. Circuit has emphasized, "[p]erhaps the most 

essential purpose served by the requirement of an articulated decision is the facilitation of 

judicial review." Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without 

findings of fact and some justification for the conclusions reached by a judge, the Commission 

cannot perform its review function effectively. Anaconda-Co., 3 FMSHRC 299, 299-300 (Feb. 

1981). Thus, the Commission has held that a judge must analyze and weigh all probative record 

evidence, make appropriate findings, and explain the reasons for his or her decision. MidContinent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994). '··· 

We discuss each of the aggravating factors of the unwarrantable failure analysis in turn. 

A. Extent of the Violative Condition 

The Commission has viewed the extent of a violative condition as an important element 

in the unwarrantable failure analysis. See Peabody, 14 FMSHRC at 1261 (holding that five 

accumulations of loose coal and coal dust were extensive). However, the judge here did not 

expressly address the unwarrantable failure element of extensiveness. Additionally, his findings 

31 FMSHRC 1351 
relevant to the extensiveness of the kettle bottoms were somewhat conflicting. He found that 

there were more than 15 unsupported or inadequately ·supported kettle bottoms (30 FMSHRC at 

865-66; Gov't Ex. 9), a number that the Secretary submits is extensive. PDR at 9. Nonetheless, 

the judge also found that IO performed some work to support kettle bottoms when he concluded 

that "[ n ]ot all kettle bottoms in the cited area of the section were inadequately supported or 

unsupported" and that there was not a "wide-spread" disregard of the requirement to provide 

supplemental roof supp.art. 30 FMSHRC at 868. 

Moreover, the judge does not appear to have considered all of the evidence pertaining to 

extensiveness. He did not discuss Supervisory MSHA Inspector Terry Price's testimony that, 

when he returned the following day, three entries, of the section still needed more support and 

only four of the entries could be released back to production. Tt. 167-68. The final tbtee entries 

were satisfactorily supported by the end of the day. Tr. 80. See Peabody, 14 FMSHRC at 1263 

· (providing that extensiveness can be shown by a condition that requires significant abatement 

efforts). 

We conclude that the judge failed to rule on whether the number and distribution of 

unsupported kettle bottoms meets the extensiveness factor of the unwarrantable failure analysis. 

On remand, if the judge relies on the extensiveness factor as a mitigating measure against 

. unwarrantable failure, he should explain how this factor weighs:againSt the other factors in the: 

unwarrantable· failure analysis. San Juan:~.29· FMSHRGa:t·133 :(directing the judge to. make ·.r. ;· 

:findings ·on the·unwarrantable. failure elements and to set forth his ratiorutle whether the element 

supports an unwarrantable failure finding) .. 

· B.. · . The Length of Time That the Violative Condition Existed: · ..· ., . 

The Commission has emphasized .that duration of the violative condition js a necessary 

element of the unwarrantable failure analysis. See Windsor Coal, 21 FMSHRC at 1001-04 

(remanding for consideration of duration evidence of cited conditions). The judge did not make 

a finding as to the duration of the conditions in which the kettle bottoms remained unsupported. 

The Secretary asserts that the kettle bottoms remained unsupported for a period of five days, 

exposing multiple shifts to unsupported roof danger. PDR at 8-9. IO does not dispute that the 

conditions lasted for five days. IO Br. at 22. The record indicates that the roof conditions on the 

005 MMU section were in existence for four or five days. Tr. 66-67, 250-251 (testimony that 

entries had been in existence for four or five days). 8 

Because the judge did not mention the duration of the roof conditions as a factor in his 

analysis, we remand this question so that the judge may weigh the record evidence on duration 

and determine if it qualifies as an aggravating factor in the unwarrantable failure analysis. We 

8 IO did not preserve the pre-shift and on-shift examination reports completed in the days 

prior to the issuance of the order in question. Tr. 253-54. 

31 FMSHRC 1352 
note that analysis of the duration factor may be affected by the judge's analysis, see infra, of 

whether IO Coal's "good faith" beliefin the non-existence of kettle bottoms was reasonable. 

C. Whether the Operator Was Placed on Notice that Greater Efforts Were Necessary 

for Compliance 

Repeated similar violations may be relevant to an unwarrantable failure detennination to 

the extent that they serve to put an operator on notice that greater efforts are necessary for 

compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997) (citation 

omitted); see also Consolidation Coal Co., 23 FMSHRC 588,595 (June 2001) ("a high number of 

past violations of section 75.400 serve to place an operator on notice that it has a recurring safety 

·· problem in need of correction.") (citations omitted). The purpose of evaluating the number of 

past violations is to detennine the degree to which those violations have '"engendei:ed in the 

operator a heightened awareness of a serious ... problem: m San Juan, 29 FMSHRC at 131 

(citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)). The Commission has 

also recognized that "'past discussions with MSHA'" about a problem "'serve to put an operator 

on heightened scrutiny that it must increase its efforts to comply with the standard."' San Juan, 

29 FMSHRC at 131 ( quotillg Consolidation Coal, 23 FMSHRC at 595). 

Jn making:·his unwarrantable detenninatiOn, the judge·d.id ·not consider the previous four .. 

, citatfons:-fur poor'roof conditions, especially kettle bottom8, issued·. to the Europa Mine. Gov~t 

Bxs. 2, 3, 4, 5. Additionally, the inspeetor testified that1.ifollowing theissuance of three of the~ . 

citations, he discussed kettle bottoms With company officials and told them they should pay more 

attention to the problem. 30 FMSHRC at 852; Tr. 47-:48. The order atissue states: ·''This mine 

has been put on heightened alert by the issuance of $.i'milar cita.tions regarding the supporting of 

surface cracks and kettle bottoms and discussions with mine management regarding the 

supporting of these roof conditions." Gov't Ex; L 

Inspector Hatfield testified that, when he spoke with management regarding the roof 

support problems contained in the earlier citations, "there was no discussion at all" that the 

condition in question was ''not a kettle bottom." Tr. 84 (stating that it ''never even became a 

point, that [the inspector] misidentified [kettle bottoms] at any time"). Foreman Thomas denied 

that the roof control plan was discussed following the citations. 30 FMSHRC at 852 n.6; Tr. 251. . 

However, the operator's brief appears to accept as a fact that such discussions occurred. IO Br. at ·· •! 

18-19, 26 n.17. The judge did not resolve the conflict in testimony with regard to the extent of the 

operator's prior notice based on discussions with the inspector. 

Nor did the judge's unwarrantable failure analysis factor in the four previous citations for 

unsupported kettle bottoms in the six week period prior to the issuance of the section 104( d)(l) 

·order on June 12, 2006. These citations are highly relevant to the issue of whether the operator 

was on notice that greater efforts at compliance were necessary. See Eagle Energy Inc., 23 

FMSHRC 829, 838-39 (Aug. 2001) (directing the judge to consider the operator's prior citations 

as an aggravating factor). 

31 FMSHRC 1353 
Moreover, the operator's argument that the prior citations for unsupported kettle bottoms do 

not constitute conclusive evidence of the factual existente of unsupported kettle bottoms in the 

past is contrary to law. The legal principle of :finality holds that an· uncontested citation is akin to 

an unappealed judgment. See Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985) (an operator 

cannot deny the fact of violation and at the same time pay a civil penalty; paid penalties that have 

become final orders conclusively reflect violations ofthe Act). In this case, IO could have 

contested the assessments in the prior citations, thereby putting at issue the existence of kettle 

bottoms on four occasions in the six weeks before June 12, 2006. It chose not to do so, even after 

the issuance of the section 104( d)(l) order on June 12 implicitly raised the issue of prior 

violations. Hence, the fact that unsupported kettle bottoms existed as described in the four prior 

citations can not now be questioned. 

· Nor are we persuaded by IO's argument that the four prior citations do not sezye as 

adequate prior notice because they involved different crews on ·~far removed" sections rather than 

the one at issue, here. IO Br. at 18. IO overlooks a critical fact: three of the four citations were 

issued to the same mine foreman, Fred Thomas, who is involved here, and Thomas was well 

aware of the other citation issued to the previous mine foreman. Thomas had the responsibility to 

raise safety awareness on aff the mine sections regarding kettle bottoms and other roof conditions. 

We reject as untenable and contrary to the Mine Act IO's suggestion that until such time as a 

~Violationis found ona·particular section, the·section is.immunefrom knowledge:·ofa safety· 

··problem elsewhere in the mine. The Commission has rejected, the atgument-that only past 

violations involving the.same;regulation and.'.occurring m:the same·area within a continuilig time 

:frame may be properly considered when determining whether a violation is unwarrantable. 

Peabody Coal Co., 14 FMSHRC at 1263; Enlow Fork Mining .Co;~ 19 FMSHRC 5; ll-,12·.(Jan; 

·J997'} ~Finally; we note that general mine management :reta.ins.resp~ibilityfor sa(ety and health· 

compliance. Eastern Assoc. Coal Corp., 13 FMSHRC'l 78" 187; (Feb; 1991) (actual knowledge. 

not necessary element to establish aggravated conduct for an unwarrantable failure :finding); 

Accordingly, under Commission case law, past violations covering a different area than the one 

cited may serve to provide an operator with sufficient awareness of a problem. San Juan, 29 

FMSHRC at 131-32. 

We also reject the operator's argument that the four prior citations are an insufficient basis 

for a finding of unwarrantable failure because all of the previous citations had included a finding 

of only moderate negligence. IO Br. at 17. Inspector Hatfield engaged inarpreeess of progressive 

enforcement. The first four times he observed unsupported kettle bottoms, he issued section 

104(a) citations and found only moderate negligence. On the fifth occasion, because the operator 

continued to engage in the same unsafe conduct, Inspector Hatfield made a :finding of 

unwarrantable failure and issued a section 104( d)(l) closure order. This appears to be a measured 

response to the operator's persistent non-compliance with the terms of its roof control plan. 

Moreover, the Commission has .recognized that under its precedent, prior citations, even if not for 

unwarrantable failure, put operators on notice that greater compliance is necessary. Eagle Energy, 

23 FMSHRC at 838. 

31FMSHRC1354 
We note that the judge in a footnote stated: "Hatfield's. finding of unwarrantable failure 

and high negligence may have been based on personal pique more than on an analysis of the 

standard of care IO and its employees were required to meet. When asked why [Hatfield] found 

the violation was due to IO's 'high' negligence, he responded, 'Because I talked to the operator on 

several occasions about the roof control plan and it seemed I wasn't getting anywhere with just 

writing a citation."' 30 FMSHRC at 869 n.18 (citing Tr~ 76). We question the judge's statement 

that the fuspector may_have acted out of "personal pique." The Mine Act contemplates a 

progressive enforcement scheme whereby if an operator incurs repeated similar serious violations 

and fails to remedy the situation, MSHA appropriately is to increase the severity of the 

enforcement action. See 30 U.S.C. § 814(d) & (e). This scheme is intended to induce meaningful 

compliance by operators with the safety and health requirements of the law. As statedbythe 

Court of Appeals for the District of Columbia in Coal Employment Project v. Dole, quoting the 

legislative history: "Thus, we understand the [Senate Human Resources] Committe!' to say that an 

unwarrantable failure citation is a remedy available to an inspector confronting a non-technical 

violation that favolves unwarrantable behavior, such as the operator's deliberate or repetitious 

violation of a health or safety standard." 889 F.2d 1127, 1133-34 (D.C. Cir. 1989) (emphasis 

added). 

Based on the record, we conclude that IO Coal was on notice that greater efforts at 

. complianee with its roof control plan were needed.: .American Mines Servs;, Inc. .. 1 S;·FMSHRGJ:, 

· ;J 83{)l·i 834 (Sept. 1993) (concluding.that· the evidence. pr¢sented•·on ,fhe. reeotd.supported no other 

·conclusio1rand remand Was unnecessary). Because.the operator'has maintained that it disagreed 

utgood·faith with the insp~tor~s characterization of kettle bottoms, this is a critical factor.in.the 

unwarrantable.failure detennination in this case. On remand, the judge should weigh this factor . 

of notice together with the other factors in his ·unwarrantable failure. analysis. . . ;".; ·! . '; . : . :.. . ·~ . 

D. Whether the Violation Posed a High Degree of Danger 

The Commission has relied upon the high degree of danger posed by a violation to support 

an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC at 1243-44 (finding 

unwarrantable failure where unsaddled beams "presented a danger'' to miners entering the area); 

Wa"en Steen Constr., Inc., 14 FMSHRC 1125, 1129(July1992) (finding violation to be 

aggravated and unwarrantable based upon "common knowledge that power lines are hazardous, 

and ... that precautions are required when working near power lines with heavy equipm~'); · · · 

Quin/and Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof conditions were 

"highly dangerous"). 

The judge found that the violation was S&S and of serious gravity. 30 FMSHRC at 867-

68. The judge held that the "inadequately supported and unsupported kettle bottoms posed 

discrete safety hazards" because kettle bottoms could slip from the roof without warning, 

sometimes causing serious injuries to miners. Id. at 867 & n.17. The judge emphasized that eight 

miners worked and traveled under the cited kettle bottoms and that the inadequately supported and 

31FMSHRC1355 
unsupported kettle bottoms could fall at any time, resulting in serious injury or death. Id. at 867-68. 

Although the judge considered dangerousness in considering whether IO violated section 

75.220(a)(l) and whether that violation was S&S, the judge did not relate any of those findings to 

his unwarrantable failure analysis. In San Juan, 29 FMSHRC at 133, the Commission determined 

that the judge erred by failing to make necessary findings and conclusions as to whether evidence 

of the danger posed by the violation demonstrated that the operator's conduct was aggravated, and 

how this factor weighed against other factors in his analysis. We likewise remand the danger 

factor for further evaluation. 

E. The Operator's Effort in Abating the Violative Condition 

An operator's effort in abating the violative condition is one of the factors est!lhlished by 

the Commission as determinative of whether a violation is unwarrantable. ·Where an operator has 

been placed on notice of a problem, the level of priority that the operator places on the abatement 

of the problem is relevant Enlow Fork, 19 FMSHRC at 17. Previous repeated violations and 

warnings from MSHA should place on operator on "heightened alert" that more is needed to 

rectify the problem. New Warwick Mining Co., 18·FMSHRC 1568,·1574 (Sept. 1996). The focus 

«m the operator's abatement efforts is on those efforts made prior to the citation or order. Id. 

· - .,_. :;·Tuerecord:evidence appears to·-demonstrate that;prior to .theinspectionatissue IO did not 

·take any additional: steps to remedy its roof conditions in~response to the previous four citations. . · 

Tr. 252-53. Mine Foreman Thomas testified:that, following theissu:ance of the three prior ... 

violations having to do with Safety Precaution No. 7 of the Roof Control Plan, he did not take any. 

special steps;· such as a safety meeting with the section foremen. relating to roof conditions. Tr .. ·· .. 

253. 

The judge failed to consider IO's apparent lack of remedial actions to improve its roof 

safety following the four prior citations. He also made no findings as to the extent of the 

operator's abatement efforts and how that factor related to his unwarrantable failure analysis. See 

San Juan, 29 FMSHRC at 136 (remanding the question of whether the operator's prior actions in 

abating the violative condition supports an unwarrantable failure finding). Accordingly, we 

remand for evaluation of the abatement factor. We note that analysis of the abatement factor will 

be affected by the judge's analysis, see infra, of whether IO Coal's "good faith'rbeliefin the-nonexistence of kettle bottoms was reasonable. 

F. The Operator's Knowledge of the Existence of the Violation and whether the 

Violation was Obvious; the Reasonableness of the Operator's "Good Faith 

Disagreement" with MSHA as to What Constitutes a Kettle Bottom 

An operator's knowledge of the existence of a violation and whether the violation is 

obvious are important elements of an unwarrantable failure analysis. Moreover, it is well settled 

that an operator's knowledge may be established, and a finding of unwarrantable failure 

31 FMSHRC 1356 

· .. 
supported, where an operator reasonably should have known of a violative condition. See Emery, 

9 FMSHRC at 2002-04; Drummond Co., Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991), quoting 

Eastern Assoc. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991)("Emery makes clear that 

unwarrantable failure my stem from what an operator 'had reason to know' or 'should have 

known"'). 

In this case, IO_contends that it had· a good faith disagreement with Inspector Hatfield 

regarding what was, and what was not, a kettle bottom. IO Br. at 4-14; Tr. 199-201, 309-11, 346, 

377. The issue of the operator's "good faith disagreement" with Inspector Hatfield as to certain 

roof formations being kettle bottoms is inextricably intertwined with the issues of the operator's 

.knowledge of the existence of the violation and the obviousness of the violation. . It also affects 

the issues of duration and efforts at abateinent. 

- In weighing the evidence, thejudge found that section foreman Jefferson "simply 

misjudged some of the kettle bottoms" and that there were "genuine and good faith disagreements 

between the inspector and IO personnel as to what constituted a kettle bottom." 30 FMSHRC at 

868-69. The judge's finding of "genuine" disagreements is supported by substantial evidence.9 

Regarding the disagreements being in "good faith," the judge, after describing the witnesses' 

conflicting testimony about the existence of unsupported kettle bottoms, found that "[n]one of the 

witnesses were, in my opinion, disingenuous/' Id. at 866. We .find no compelling· evidence in the·: 

record ·to:take:the:extraordinary .step of overturning the judge's credibility:determiriatiQn in this· ' . 

. regard. 10· · ·' : "' . ,. ·.:. · · ' · :. . 

However, a :finding of a subjective ~'good faith disagreement" does not end: the inquiry; 

The trier .. of-faet must determine whether the operator's belief was objectively reasonable under 

the circumstances. In Kellys Creek Resources, Inc., 19 FMSHRC 457 (Mar. 1997), the 

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

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

. \ 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

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

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

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

10 A judge's credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Generally, the Commission will 

uphold a judge's credibility determination unless compelling evidence supporting reversal is 

offered. See Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 1418(June1984) (refusing to 

take the "exceptional step" of overturning judge's findings based on credibility resolutions); see 

also Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984), aff'd 766 F.2d 469 (1 lth Cir. 

1985) (stating that when the judge's finding rests upon a credibility determination, the 

Commission will not substitute its judgment for that of the judge absent clear indication of error). 

31FMSHRC1357 
Commission held that ''if an operator acted on the good-faith belief that its cited conduct was 

actually in compliance with applicable fa\\< and that belief was objectively reasonable under the 

circumstances, the operator's conduct will not be considered to be the result of unwarrantable 

failure when it is later determined that the operator's belief was in error." Id. at 463 (citing Cyprus 

Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (Aug. 1994)) (emphasis added). In Cyprus, 

the Commission overturned the judge's finding that the foreman's good faith belief precluded an 

unwarrantable failure determination because the judge failed to consider the ''reasonableness" of 

the foreman's belief. 16 FMSHRC at 1615. In Kellys Creek, 19 FMSHRC at 463-65, the 

Commission reversed the judge's determination that a good faith belief precluded unwarrantable 

failure because the Commission found that the belief was not reasonable .. See also Wyoming Fuel 

Co., 16 FMSHRC 1618, 1628-29 (Aug. 1994) (holding that an operator's conduct was not .. ·. 

aggravated where judge implicitly found that operator's good faith belief that it was in compliance . 

with regulations was reasonable under the circumstances), ajf'd, 81F.3d173 (10th C!r.1996) 

(unpublished table decision). 

In this case, the judge did not determine whether the operator's "genuine and good faith 

disagreements" with the MSHA inspector as to what constituted a kettle bottom were objectively 

reasonable under the circumstances. For example, the judge did not harmonize his finding of 

·"good faith disagreements" with his earlier finding that "[i]f, in.fact, Hatfield misidentified kettle·~ 

·bottoms, it-is reasonable to; expect IO personnel to have protested long and loudj then and'.:there: , 

They.diff not: [Tt~ 84~ 114] . A clOse reading of the testimpny reveals tbatit was after. he-issued the · 

order that they began to argue he misidentified the formations}' 30 FMSHRC·at 866.· ·. · ,, , ! • : 

· '.• ·Additionally, the judge did not pose the question of whether IO's conduct was . , 

·''reasonable'.'undet the· circumstances after it had received four.MSHA citations on this·-very,issue .. 

In Consolidation·Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996), the Commission atlinned the ·. 

judge's finding of no reasonable, good faith belief where the operator failed to inquire into 

MSHA's enforcement position. Analogously, IO apparently did not seek MSHA's guidance on its 

decision not to support the alleged kettle bottom formations even though it had received a number 

of citations. 

Most significantly, the judge's finding that section foreman Jefferson ''was not indifferent 

to his responsibilities" for roof control on the section and "tried, but failed to meet the standard of 

care required of him," 30 FMSHRC at 868, does not dispose of the issue of reasonableness. 

Jefferson's supervisor was Thomas, the mine foreman, and Thomas was certainly aware of the 

four previous citations for unsupported kettle bottoms in the six weeks before this order was 

issued. Thomas had received the last three of these citations directly from Hatfield, and was 

aware of the first one being given to his predecessor as mine foreman. Hatfield testified that in 

issuing each of these previous violations, he had talked with Thomas or his predecessor about 

what he classified as a kettle bottom, and the need to comply with Safety Precaution No. 7 of the 

roof control plan. Tr. 37, 39-40, 45, 48, 52. His testimony is corroborated by the fact that the 

section 104(d)(l) order issued in this case on June 12, 2006 states: "This mine has been put on 

heightened alert by the issuance of similar citations regarding the supporting of surface cracks and 

31 FMSHRC 1358 
kettle bottoms and discussions with mine management regarding the supporting of these roof 

conditions." Gov. Ex. 1. Although Thomas denied talking.with Hatfield about the roof control 

plan after receiving the previous citations, Tr. 251, it is undisputed that IO Coal neither contested 

the previous citations for unsupported kettle bottoms nor inquired ofMSHA supervisory 

personnel regarding Hatfield's understanding of what constituted a kettle bottom. 

The conduct o[section foreman Jefferson in this case is thus much less significant than the 

conduct of mine foreman Thomas in determining whether the "good faith disagreement" with 

MSHA was reasonable under the circumstances. Thomas acknowledged that after receiving the 

three previous citations, he did not hold a safety meeting with any of the section foremen to 

discuss roof control. Tr. 253. Indeed, the record does not indicate that Thomas took any action 

whatever to acheive greater compliance with the roof control pla11 dU:ring the period he was mine 

foreman prior to the June 12, 2006 order. In this context, we note our statement in Consolidation 

Coal Co., 14 FMSHRC 956, 970 (June 1992): "Whatever difficulties may be presented by the 

Secretary's interpretation of the Act and regulations, no operator is free to take the law into its 

own hands by deciding for itself what the law means and how it can best be applied." 

Finally, a thorough review of all the facts and circumstances bearing on the unwarrantable 

failure~issue should consider that IO did not preserve the pre-shift and·on-shift examination. 

reports ·completed ;in the days priorto .. the issuance of the order in question. . These reports W.oul<f-:. 

likely have shed some light on how much the operator knew' aboμt the kettle bottoms.befo~""the. ·; 

Order,Was issued. :Tr. 253;..54. See Windsor Coal, 21FMSHRC<at1004 (preshiftbooks reflecting. 

coal accumulations along the belt were relevant to determination of whether operator was on· 

notice of need for greater efforts at compliance); Peabody Coal, J4. FMSHRC at1262{same). · · 

. The judge did not discuss or draw any conclusions with respect to these missing reports. 1

.

1 •. We,. . 

:direct the judge to. address the missing examination reports in ·his evaluation of knowledgeiand' i; ... 

weigh this fu his unwarrantable failure analysis. 

Hence, on remand, the judge should consider the issues of the Operator's knowledge of the 

existence of the violation and whether the violation was obvious. The principle question in these 

determinations is whether the operator's "good faith disagreements" with Inspector Hatfield as to 

what constituted a kettle bottom were objectively reasonable under the circumstances. If the. 

operator's disagreements with the inspector were reasonable, then it may be concluded that the 

operator did not have knowledge of the existence of the violation and-that the violation was not ". , 

obvious. However, if the disagreements were not reasonable, in light of the.judge's finding that 

11 It is well-recognized that if a party has control over a writing or other type of evidence, 

which is relevant to an issue, and fails to produce the evidence, an inference can be drawn that 

the evidence would be adverse to the party. McCormick on Evidence provides that "[w]hen it 

would be natural under the circumstances for a party to . . . produce documents or other objects 

in his or her possession as evidence and the party fails to do so, tradition has allowed the· 

adversary to use this failure as the basis for invoking an adverse inference." 2 McCormick on 

Evid. § 264 (6th ed. 2006) at 220-21. 

31 FMSHRC 1359 
the disagreements were not articulated until after the withdrawal order was issued, together with 

the fact of IO Coal's response (or lack thereof) to the issuance of four previous citations for the 

same type of violations of the roof control plan, then it may be concluded that the operator did 

have knowledge of the violation. 

Ultimately, the judge should bear in mind the D.C. Circuit's characterization of 

Congressional intent: _ 

Congress was particularly concerned about curbing repeat offenders 

among mine operators. Reporting on the bill that became the Mine 

Act, the Senate Committee on Human Resources stated: 

In evaluating the history of the operator's violations 

in assessing penalties.it is the.intent of the 

Committee that repeated violations of the same 

standard, particularly within a matter of a.few 

inspections, should result in the substantial increase 

in the-amount of the penalty to be assessed. 

Goal Employment Project v. Dole, 889R 2d-at 1132. 

31 FMSHRC 1360 
III. 

Conclusion 

For the reasons discussed above, we vacate the judge's detemriruition that IO's violation of 

section 75.220(a)(l) was not caused by its unwarrantable failure. We remand for reconsideration 

of the record consistent with this decision, and for reassessment of the civil penalty, if 

appropriate. 12 

Robert F. Cohen, Jr., Commissioner 

12 Our dissenting colleague would have the Commission reverse the judge's 

determination and hold, as a matter of law, that the evidence compels a finding that the violation 

was due to the operator's unwarrantable failure. While we agree that the evidence, particularly 

the four previous violations of section 75.220( a)(l) because of unsupported kettle bottoms, 

strongly suggests a finding of unwarrantable failure, it is the function of the judge, not the 

Commission, to weigh all the relevant evidence and make a determination on this issue. Martin 

County Coal Corp., 28 FMSHRC 247, 257 (May 2006). 

31FMSHRC1361 
Chairman Jordan, dissenting: 

Over the course of six weeks, IO Coal received four citations because it failed to install 

supplemental roof support in the face of adverse conditions. Three of the four citations were 

issued to the same individual, general mine foreman, Fred Thomas, after MSHA inspector 

Hatfield observed unsupported kettle bottoms in the mine.1 Tr. 33-49. According to the 

inspector, after issuing e.ach citation he discussed the hazards posed by the kettle bottoms with 

mine officials and urged them to take precautions. Tr. 45-48.2 Nevertheless, four days after he 

issued his fourth citation, Inspector Hatfield returned to the mine and observed at least fifteen 

unsupported kettle bottoms, a situation which prompted the inspector to issue the section 

104(d)(l) unwarrantable failure order under review. Tr. 53, 56-59, 68; Gov't Ex. l. 

The judge below upheld the violation but eliminated the unwarrantable failur~ designation. 

My colleagues have concluded that the judge's unwarrantable failure determination must be 

vacated and that issue remanded for reconsideration. Because I find the operator's ongoing failure 

to support kettle bottoms in the mine, despite repeated warnings from MSHA, to constitute 

precisely the type of behavior that Congress intended to address in section 104( d)(l) of the Mine 

Act, I would reverse the judge and find the subject violation to have been properly designated as 

resulting from the operator's unwarrantable failure to comply with its roof control plan. 

Unwarrantable failure is demonstrated by "aggravated .conduct;- constituting more than 

ordinary negligence," characterized by "reckless disregard," ·''intentional misconduct,1~ 

"Indifference," or a "serious lack of reasonable care.". Emery Mining Corp., 9 FMSHR.C 1997, 

2001, 2003-04 (Dec. 1987). These terms aptly describe the operator's conduct in this case .. 

Although the four previous citations clearly put IO on notice .it was failing to address .the · 

hazardous conditions posed by the kettle bottoms in its mine, the operator took no meaningful 

steps to rectify the situation until the subject withdrawal order was issued. If this behavior does 

not constitute unwarrantable failure, I'm not sure what does. As Congress explained when it 

enacted the Mine Act, ''the unwarranted failure order recognizes that the law should not tolerate 

miners continuing to work in the face of hazards resulting from conditions violative of the Act 

which the operator knew of or should have known of and had not corrected." S. Rep. No. 95-181, 

at 31, (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 619 (1978). 

The Commission has recognized that whether conduct results from an operator's 

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

determine if any aggravating or mitigating circumstances exist. Aggravating factors include the 

length of time that the violation has existed, the extent of the violative condition, whether the 

1 The material constituting a kettle bottom is not part of the coal bed and· can slip from the 

roof at anytime unless adequate support is provided. 30 FMSHRC 847, 867 (Aug. 2008). 

2 The operator appears to concede that these conversations took place. IO Br. at 18-19. 

31 FMSHRC 1362 
I ·: • 

operator has been placed on notice that greater efforts were necessary for compliance, the 

operator's efforts in abating the violative cbndition, whether the violation was obvious or posed a 

high degree of danger, and the operator's knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res. 

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

Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994);,feabody Coa/Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy 

Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705, 

709 (June 1988). All of the relevant facts and circumstances of each case must be examined to 

detennine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 

22 FMSHRC at 353. 

My colleagues concede that the operator was on notice that greater efforts at compliance 

with its roof control plan were needed and they acknowledge that "[t]he record evidence appears 

to demonstrate that prior to the inspection at issue IO did not take any additional steps fo remedy 

its roof conditions in response to the previous four citations." Slip op. at 11, citing Tr. 252-53. In 

addition, they agree that the judge correctly found the violation to be significant and substantial, 

and thus of high gravity.3 With regard to the duration of the violation, it is undisputed that the 

cited condition lasted for at least four or five day8. Tr. 66-67, 250-51; IO Br. at 22. In terms of . , 

the e:x;tensiveness of the condition, the judge found there were more than 15 unsupported or 

'inadequately supported kettle bottoms. 30·FMSHRC at 865~66; Gov.'t Ex. 9.4

. Given tliese ,. 

circumstances - wherein the operator was on notice of an extensive· and dangerous violation ·of 

long duration that MSHA had cited it for repeatedly, and which IO did not take any significant 

steps to address - the record can only support one conclusion: that the violation was caused by the 

operator's unwarrantable failure to comply. 

3 Although the majority acknowledges the judge's finding that "eight miners worked and 

traveled under the cited kettle bottoms and that the inadequately supported ·and unsupported 

kettle bottoms could fall at any time, resulting in serious injury or death," slip op. at 10-11, citing 

30 FMSHRC at 867-68, they nonetheless remand the case to the judge for consideration of the 

"danger factor." Slip op. at 11. In light of his significant and substantial finding, I do not see 

how the judge could fail to find the dangerous nature of the cited condition to be an aggravating 

factor. The inspector testified that the cited roof conditions presented the hazard of falling roof 

material, Tr. 75-76, 158-59, that should a roof fall occur, injuries would reasonably be expected 

to be permanently disabling, Tr. 47, 75, and that a roof fall was reasonably likely to occur due to 

the lack of supplemental support for numerous adverse roof conditions. Tr. 75-76. 

4 The inspector testified that the unsupported kettle bottoms were obvious and extensive. 

Tr. 52. Moreover, as my colleagues have noted, the extensiveness of the violation can be shown 

by the significant abatement effort that was necessary before the order was terminated. Slip op. 

at 7. 

31 FMSHRC 1363 
My colleagues' would have the jud,ge focus on the reasonableness of the operator's 

disagreement with MSHA regarding whether or not certam roof conditions at the mine constituted 

kettle bottoms. Slip op. at 11-15. However, after receiving four prior citations for unsupported 

kettle bottoms, the operator's position was patently unreasonable. By the fifth time IO was cited, 

MSHA's view on the question was eminently clear. It was unreasonable for IO to stubbornly 

adhere to its position, given MSHA's vigorous and consistent enforcement actions. As we 

emphasized in Consolidgtion Coal Co., 14 FMSHRC 956, 970 (June 1992), a high degree of 

negligence is appropriately attributed to an operator who does not comply with MSHA's 

interpretation after MSHA has made its view evident: 

Whatever difficulties may be presented by the Secretary's 

interpretation of the Act and regulations, no operator is free to take 

the law into its own hands by deciding for itself what the law means . 

and how it can best be applied. 

(citation and internal quotation marks omitted). 

Although IO now contends that the inspector misidentified formations which were not; in 

fact, kettle bottoms, it is apparent that the operatorwas simply c<>nducting "business as usual," as 

it made no ineaningful inquiries to MSHA.at the relevant time. abouHts alleged disagreemenh>ter 

:what conStituted ·a kettle bottom. Its argument thanhe:cited conditi~rt was: simply the·result of:a., · .. 

"good faith disagreement" or "difference.in judgment', would have more credence if mine . 

. officials had bothered to speak With MSHA about this question before the mine closure. ··Instead, 

they failed to challenge any of the previous citations and did not bring up the dispute when 

accompanying the MSHA inspector. Tr . .114. 

Although my colleagues correctly fault the judge for failing to address all of the elements . 

of the unwarrantable failure analysis, slip op. at 6, their remedy - remanding the case "for a fuller 

discussion that identifies and incorporates all the relevant elements and explains how each 

element affects his unwarrantable failure determination," - id., is unnecessary. Given the findings 

by the judge, findings with which the majority does not disagree, and the overwhelming 

'"evidence [of] a callous disregard for the hazards,"' Rock of Ages Corp., 20 FMSHRC 106, 115 

(Feb.1998) (citation omitted), demonstrated by IO's persistent failure to properly support the roof 

even after it was repeatedly cited by MSHA, any additional analysis would be superfluous. 

Although the factors articulated by the Commission in prior unwarrantable failure cases have 

created invaluable guideposts, see, e.g., Mullins & Sons Coal, 16 FMSHRC at 195-96, at this 

point in the litigation the judge should not be obliged to produce a mechanistic litany on every 

factor. 

The Commission has not hesitated to reverse a finding of no unwarrantable failure when 

faced with compelling evidence to the contrary. For example, in Jim Walter Resources, Inc., 19 

FMSHRC 480 (Mar. 1997), we reversed the judge's conclusion that three coal accumulation · 

violations were not the result of unwarrantable failure, explaining that: 

31FMSHRC1364 
[ o ]ur review of this record as a whole - particularly the undisputed 

evidence regarding the prior warnings and the extensive and 

obvious nature of the violation - leads us to conclude that there is 

not substantial evidence to support the judge's finding that no 

aggravated conduct occurred. In such a case, the proper course of 

action is reversal, not remand. 

Id. at 489 n.8. See also Consolidation Coal Co., 22 FMSHRC 328, 333 (Mar. 2000) (reversing 

judge's finding of no unwarrantable failure when operator failed to respond effectively to rectify a 

violative condition of which it was aware). As in those cases, we have here a record.in which 

there is not substantial evidence to support a finding that aggravated conduct did not occur. 

Congress created the unwarrantable failure designation in section 104(d)(l) as an 

enforcement mechanism to be used in exactly the type of circumstance presented in·this case: an 

operator whom MSHA repeatedly cited but who nonetheless failed to remedy a safety problem. 

Although the trial judge is, of course, the initial finder of fact, it is axiomatic that when the 

evidence supports only one conclusion, a remand to the judge serves no pwpose. See American. 

Mine Servs .• Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (affirming judge's finding of no 

unwarrantable failure, despite judge's error in not addressing&Ome of the Secretary's evidence). 

Here, the record compels the conclusion that the·violation was .due.to the operator's unwarrantable 

failure;. ~Acco'rditigly, lwould reverse:: 

31 FMSHRC 1365 
Distribution: 

Cheryl C. Blair- Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22m1_floor West 

Arlington, VA 22209-2296 

David J. Hardy, Esq. 

Allen Guthrie, & Thomas, PLLC 

500 Lee Street, East, Suite 800 

P.O. Box 3394 

Charleston, WV 25333 

Administrative Law Judge David F. Barbour 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

•:Washington, D.C. 20001-2021 

31 FMSHRC 1366 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY A@ HEALTH 

ADMINISTRATION (MSHA) 

v. 

WEBSTER COUNTY COAL, LLC 

SUITE9500 

WASHINGTON, DC 20001 

December 14, 2009 

Docket No. KENT 2008-167 

A.C. No. 15-02132-129470 

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

ORDER 

BY THE COMMISSION: 

This matter arises undet the Federal Mine Safety and Health Act of 1977, 30U.S.C;. ·• 

.· § 801 et seq. (2006) ("Mme Act"). On December 2, 2009, the Commission received ftom · • 

Webster County Coal, LLC ("Webster") a motion seeking to reopen a proposed penalty 

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

-0fthe Mine Act, 30 U.S.C. § 815(a). 

On April 13, 2009, Chief Administrative Law Judge Robert J. Lesnick issued a show 

cause order to Webster because Webster had failed to file an answer to a petition for penalty 

assessment sent to it by the Secretary of Labor on December 28, 2007. In the show cause order, 

the judge stated that Webster 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. The record shows that Webster received the 

Order to Show Cause on April 16, 2009. On November 3, 2009, Chief Judge Lesnick issued an 

order finding that Webster had failed to respond to the show cause order and entering a judgment 

by default for the Secretary. 

On December 2, 2009, the Commission received the motion to reopen from Webster. 

The motion did not provide reasons regarding why the company had not answered the petition for 

penalty assessment nor responded to the show cause order. It instead asserted that the operator 

had no record of receiving the proposed assessment. In her response to the motion, the Secretary 

opposed the granting of Webster's request because it does not address any basis for vacating the 

Chief Judge's default order. 

31 FMSHRC 1367 
The Chief Judge's jurisdiction in this matter terminated when his default order was issued 

on November 3, 2009. 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)(A); 29 C.F.R. 

§ 2700.70(a). We construe the motion from Webster to be a timely filed petition for 

discretionary review. 

The petition for discretionary review filed by Webster does not address the validity of the 

ChiefJudge's defauh order nor provide any reasons why the default order·should be vacated. The 

operator also does not address why it failed to address the show cause order when the record 

specifically indicates its receipt. In ad~tion, Webster does not indicate how the Secretary_had '. 

issued.a petition for the assessment of civil penalty if Webster had not first contested the initial 

proposed assessment, which it now claims not to have received. On these grounds, we hereby 

deny the petition. 1 • 

Michael ~·~ F.~m111iSSi011er 

Robert F. Cohen, Jr., Commissioner 

1 Commissioners Duffy and Young would entertain an amended motion to reopen that 

directly addresses Webster's failures to answer the petition for assessment of penalty and to 

respond to the show cause order. Such a motion should include supporting documentation, 

including affidavits from the individuals involved fully explaining those failures. See Prairie 

Materials Sales Inc., 26 FMSHRC 800, 801 n.l (Oct. 2004). 

31 FMSHRC 1368 
Distribution: 

Deanna L. Talwalkar, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

i I 00 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance. 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, v A 22299-3939 

r,, .. . : . 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Revi~ Commission 

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

Washington, D.C .. 20001-2021 

31 FMSHRC 1369 
FEDERAL MINE SAFETY AND HEAL TH REVJEW COMMISSION 

SECRETARY OF LA.HOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOLIDATION COAL 

COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 15, 2009 

Docket No. WEY A 2009-1871 

A.C. No. 46-01436-180675 

Docket No. WEYA 2009-1872 

A.C. No. 46-01436-186516 

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

ORDER 

. BY~COMMISSION: ;·. 

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

§ 801 et seq. (20o6) ("Mine Act").· On August 26, 2009, ·tl1e Coinmission received from 

Consolidation Coal Company ("Consol") motions made by counsel seeking to reopen two 

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

of the Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

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

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

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

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

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

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

consolidate docket numbers WEV A 2009-1871 and WEY A 2009-1872, both captioned 

Consolidation Coal Co. and both involving similar procedural issues. 29 C.F.R. § 2700.12. 

31FMSHRC1370 
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

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). 

The record.indicates that the operator misplaced the proposed assessments during a 

lengthy process of changing portals at the mine. The proposed assessments were inadvertently 

placed in a box of assessments that had already been processed, and this box had been left at the 

portal which had been vacated. When the proposed assessments were discovered, the operator 

promptly filed motions to reopen. The Secretary states that she does not oppose the reopening of 

the pr<)posed penalty assessments. 

·Having reviewed Consol's requests and the Secretary's responses, in the interests of 

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

further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, Z9 C.F .R. 

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

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

;, ·.· . 

~~ Michaett:ConimisSkm~ s 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1371 
Distribution: 

R. Herny Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue · 

Pittsburgh, PA 15222 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

u;s. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Co~pliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington,V A 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick . 

.. Fede~l Mine Safety & Health Review Commission · 

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

Washington, D.C. 20001-2021 ' . 

31FMSHRC1372 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OFLA.BOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOL PENNSYLVANIA 

COAL COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 16, 2009 

Docket No. PENN 2009-546 

A.C. No. 36~07230-171630 

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, CommissiOners 

ORDER 

. BY THE COMMISSION: , 

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

. § 801 et seq. (2006) ("MineAct''). On June 8, 2009, the Comm1s8ion·received a motion by 

counsel for Consol Pennsylvania Coal Compaμy ("Consol'') seeking to reopen a penalty · · 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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 

31FMSHRC1373 . 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

merits permitted. See Coal Prep. Servs.; Inc., 17 FMSHRC1529, 1530 {Sept. 1995). 

On December 16, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000171630 to Consol, proposing 

civil penalties for 70 citations issued to the operator at its Bailey Mine during the preceding two 

months. Consol states that its then superintendent at the mine, who normally received 

assessments and forwarded them to the safety department for further action, was on vacation 

around the holidays when the assessment at issue arrived. Consol further explains that the mine 

was idle for the holiday week, and that the safety director did not receive the assessment until 

_Jcμiuary ~2. 2009. According to Consol, at that point the safety director affixed a cover sheet 

indicating his mistaken belief that the assessment had been received just that day~ After Consol .· 

sent its notice to MSHA that it was contesting 11 of the penalties on January 29, 2009, MSHA 

rejected the contest as untimely. 

The Secretary of Labor does not oppose the motion to reopen . 

. -

Certain factors weigh in favor of granting the motion to reopen, i.e., the Secretary does 

not oppose it and the contest was eventually filed oaj.y four days late. However, Consol, after 

learning of MSHA's February 23, 2009, rejection of its notice of contest, waited more than three 

months to file its. moti~n to reopen. Under Rule 60( c ), a motion to· reopen, regardless; ofits 

merit, is only granted if it is filed within a reasonable time. In the context of penalty 

asses~ents, in considering whether .an operator has unreasonably delayed in filing a motion to . 

. ·reOp~, Wt},find relevant the amount oftim~ that has passed between an.operator's receiptof a .: 

delitiq~~n~y ·notice from MSHA or other notice of default. and the operator's filmg of its iJiotion· . 

to reopen,.~~ well as the reason fot any delay. See, e.g., Left Fork Mining Co., 31 FMS~C 8;. 

11 (Jan. 2009). · 

31FMSHRC1374 
Having reviewed Consol's request and the Secretary's response, we conclude that Consol 

has failed to explain the delay in responding to MSHA's rejection of its notice.of contest and 

therefore has not provided the Commission with an adequate basis to reopen. See, e.g., Petra 

Materials, 31 FMSHRC 47, 49 (Jan. 2009). Accordingly, we deny without prejudice Consol's 

request to reopen. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1375 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue. _ 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty CoII1pliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. -Lesnick 

Federal ·Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1376 

ADMINISTRATIVE LAW JUDGE D~CISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 950P 

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATIO}'l (MSHA), 

Petitioner 

v. 

CLOVERLICK COAL CQ., LLC, 

Respondent 

November 4, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-497 

A.C. N<i 15-18241-136323 

Mine# 1 

DECISION 

Appearances: Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Before: 

Richard Darrell Cohelia, Cloverlick Coal Company, LLC, Benham, Kentucky, for 

Respondent. 

Judge Hodgdon 

This case is before me ,on a Petition for Assessment of Civil Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),.agaillst: --

Clovetlick Coal Company, LLC, pursuant to section 1 OS of the Federal Mine Safety .and Health 

Act of.1977, as amended, 30 u.s.c. § Sl5. The petition alleges four violations ofthe Sec'retary's 

mandatory health and safety standards and seeks a penalty of $16,587 .00. A hearing was held in 

Kingsport, Tennessee. For the reasons set forth below, I affirm the citations, after modifying 

three of them, and assess a penalty of $2,834.00. 

Backeround 

Cloverlick Coal Company operates Mine No. I, an underground coal mine, in Harlan 

County, Kentucky. During a July 2, 2007, inspection of the mine, MSHA Inspector Samuel Ray 

Creasey observed an oxygen tank and an acetylene tank which he believed were not being 

properly stored. In addition, the acetylene tank was not being maintailled in safe operating 

condition. While inspecting on July 23, 2007, Inspector Creasey determined that an adequate onshift inspection had not been conducted on the No. 3 belt flight for the 002 MMU (mechanized 

mining unit). Finally, on August 30, 2007, he concluded that the approved ventilation plan in 

effect at the mine was not being followed. The resulting four citations were contested by the 

company and scheduled for trial. 

At the beginning of the trial, the parties announced that they had settled Citation No. 

6665561, concerning the inadequate on-shift inspection, and that the operator had agreed to pay 

31FMSHRC1377 
the proposed penalty in full. (Tr. 11.) Evidence was taken on the three remaining citations and 

they will be discussed in the order issued. · 

Fin dines of Facts and Conclusions of Law 

Citation No. 6665550 

During the corirse of his July 2 inspection, Inspector Creasey observed an oxygen tank 

and an acetylene tank lying, in an inverted manner, on the trailer of a mantrip. (Tr. 16-17.) As a 

result of this observation, Inspector Creasey issued Citation No. 6665550 alleging a violation of 

section 75.l 106-3(a)(2) of the Secretary's regulations, 30 C.F.R. § 75.l 106-3(a)(2). The citation 

stated that the "Condition or Practice" resulting in the violation was that: 

The oxygen and acetylene tanks for the 001 MMU are not 

being stored in a safe manner. They are both tilted in an upside 

down direction and the oxygen cylinder has its top extending 6" off 

the back of the trailer that is being used to haul them. They are 

also not adequately secured to the trailer. 

(Govt. Ex. I.) Section 75J 106-3(a)(2) requires compressed gas cylinders stored in an. 

underground coal mine to be '~[p ]l@erl securely in storage areas designated by the operator: for· i. 

such purposes, and where the height ·of the coalbed pennits, in an upright position, preferal,,ly in." 

specially.~ignated racks,. or otherwi,se secured against being accid~tly tipped over." 

j ., • 

··. : .. Xlw -~e<?tor testi;tied that the oxygeμ tank. extended appro~hnately six ~hes off the· . r · . · 

back of the-trail et,· (Tr. 17.) He further" testified that the tanks could. be stored upright in this> . 

mine. (Tr .. 17~) These tanks are used in repair work, such as oxygen cutting and torch work (Tr. 

20.) Inspector Creasey admitted that he did not check to determine whether the tanks were empty 

or full. (Tr. 29.) Cloverlick did not present any evidence on this citation. 

The oxygen and acetylene tanks were apparently not in use. An oxygen tank and an 

acetylene tank that are both lying upside down on a mantrip trailer cannot be considered to be in 

an upright position or otherwise secured against being accidently tipped over. As a result, I find 

that the operator violated section 75-l 106-3(a)(2) as alleged. 

Significant and Substantial 

Inspector Creasey determined that this violation was "significant and substantial." A 

"significant and substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), as a violation "of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health hazard." A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

31FMSHRC1378 
reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission enumerated four 

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. 

FMSHRC, 52 F. 3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99, 103-

104 (5th Cir. 1988),affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving 

Mathies criteria). Evaluation of the criteria is made in terms of"continued normal mining 

operations." U.S. Steel Mining Co., Inc. 6 FMSHRC 1573, 1574(July1984). Whether a 

violation is S&S must be based on the particular facts surrounding the violation. Texasgulf,lnc., 

10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

In order to prove that a violation is S&S, the Secretary must establish: ( 1) a Yiolation of a 

safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4. 

Inspector Creasey testified that the position of the acetylene tank created an explosion 

hazard because the inverted position would cause the acetone to run to the valve where it would 

not separate from the acetylene, making the.· acetylene more volatile .. ·{Tr. 17-18, 22.) He opined·~·· 

that such an explosion would result inJosu>f limbs, broken boμes, bums or lacerations, ·(Tr; 22.) . . ,. ! ; .! . ! ~·. . •.• ~ : ' .•. ? . ·. ! ' • " ,. 

· ' . With regard to the oxygen t~:the ~ector .testified that the position of :the tank 

hanging off of the rear of the trailer created the potential for the top of the tank to be knocked off; 

exposing the valve; :(Tr. 18.) He.;speculated.that ifthe.valve was bro!Cen.off, the presstire.would . 

be reteased.fromthetop.:ofthe tank, projecting it"like a;missile" ill the opposite direction .. (Tr; . 

18-19.) Inspector Creasey testified that the tank likely weighed about 70 pounds. (Tr. 19). He , 

said that the tank was used and transported on a daily basis throughout the mine. (Tr. 21.) He 

stated that if the tank did become a missile and hit someone, it would cause "fractures, 

contusions, bruises." (Tr. 22-23.) As previously noted, the company presented no evidence on 

this citation. 

The evidence clearly establishes the first two criteria, the violation of a safety standard 

and distinct safety hazards, explosions and propulsion, resulting from the violation. It also 

establishes a reasonable likelihood that injuries of a reasonably serious nature, loss of limb, 

broken bones, burns, lacerations or contusions would result from the violation. As is frequently 

the case, however, it is the third criterion where the Secretary's proof fails. 

When evaluating the reasonable likelihood of a fire, ignition, explosion or ''blast-off' 

there must be a "confluence of factors" present based on the particular facts surrounding the 

violation. Texasgulf, 10 FMSHRC at 501. This includes proof of a fuel source. Id. at 503. Here 

the inspector admitted that he did not know whether the tanks were empty or full. The Secretary 

presented no other evidence on this issue. Thus, the Secretary has not shown that the tanks 

contained gas. In a remarkably similar case involving an alleged violation of section 75.1106-

31 FMSHRC 1379 
3(a)(2) for an oxygen tank and an acetylene tank leaning against the rib of a coal pillar in an 

active roadway, the Commission held 'that the failure or the Secretary to prove that the tanks 

contained fuel supported "only the conclusion that the Secretary failed to carry her burden of 

proof as to the critical element of a fuel source" and that, therefore, the violation was not S&S. 

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284 (Dec. 1998). 

Accordingly, I-conclude that the Secretary has failed to prove that this violation was 

. "significant and substantial." The citation will be modified appropriately. 

Citation No. 6665551 

Inspector Creasey issued Citation No. 6665 551 alleging a violation of section 75 .1106-

5( a) of the Secretary's regulations, 30 C.F.R. § 75.1106-S(a). The "Condition or Practice" 

alleged to have resulted in this violation was that: ''The gauge for the acetylene cylinder on the 

001 MMU is not being maintained in a safe operating condition. The gauge is broken off where 

the pressure is read and this could possibly cause a leak when used." (Govt. Ex. 3.) Section 

7 5 .1106-5( a) requires that "[h ]ose lines, gauges, and other cylinder accessories shall be 

maintained in a safe operating condition." 

. ~ .:. 

· At the same time that he-found the t~ .lirV.erted in the trailer~ Inspector Creasey also. ·' 

observed that the'.filgh-pressure· gaug~ on:the acety~ene. tank 'was 'missing.and .determined that it ' ': 

had broken off. {Tr. 33 .) He testified that hazard caused by the .gauge being broken off w:as that• ; · 

(Tr. 33.) 

... ., ·•. . ' 

·, You wouldn~t be able to tell what pressure you 're letting the gas 

through:the gauges- at. . And< acetylene ;by n.;ianufacturer . · 

specification is not to ever' be released over:l5 psi, ·arid without that:' 

gauge you wouldn't know what it's coming 0ut at because above 

15 psi that acetylene can be spontaneous combustion •. And also, 

you have the danger of a leak through that gauge right there. 

The company did not present evidence on this citation. 1 I find that the Secretary has 

1 On cross examination of the inspector, however, the operator did raise the issue of 

whether this citation and the previous one were duplicative, that is, attempting to punish the 

company ~wicc for the same action. (Tr. 38.) The Commission has long held that "citations are 

not duplicative as long as the standards involved impose separate and distinct duties on an 

operator." Spartan Mining Co., Inc., 30 FMSHRC 699, 716 (Aug. 2008); Western Fuels-Utah, 

Inc., 19 FMSHRC 994, 1003-04 (June 1997); Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 

378 {Mar. 1993); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981). Here the 

standards clearly impose separate and distinct duties on the operator: ( 1) the storage of gas 

cylinders; and (2) maintaining gauges in safe operating condition. 

31 FMSHRC 1380 
established that the gauge on the acetylene cylinder was not maintained in accordance with the 

mandatory safety standard in Section 75·~l106-5(a). ·· · 

Significant and Substantial 

Inspector Creasey designated this citation as "significant and substantial." . In support of 

this; he testified, as set "t>Ut above, that without the gauge it was not possible to determine the 

. pressure of the gas being released. This is important, because if the pressure were over 15 psi, it 

could result in spontaneous combustion. He also said that gas could leak from the area where the 

gauge had broken off. He submitted that a fire from the ignition of gas leaking from the gauge or 

an explosion if the pressure exceeded 15 psi could result in amputations, broken bones or serious 

bums. (Tr~ 34-35.) 

All of this, however, depends on there being gas in the tank. As was determined 

previously, the Secretary has failed to establish that there was gas in the tank. Thus, the third 

Mathies criterion has also not been proven for this citation. Consequently, I conclude that the 

violation was not "significant and substantial" and will modify the citation accordingly. 

Citation No. 6665589 (: ,. 

:_, .: . During J:ngpector'Creasey.~s.Ailgμst ~-0,·2007;:;~tio~,he'ObS.erved a.miner cutting coal 

:·~mdirockin the N~J2 heading.and Visible:iiock:dust throughoutitb.eNo.:2 entry. (TJ'.; 41-43.) · 

Mining operations were stopped and Inspector Crea5ey went up to the end of the line curtain. · 

(Tr. 41-42.) He attempted to1ake, an ·air.reading,withhis;arieinometer, but tbe turbine in the 

·.anemometer would not-turn. ·(Tr .. 42: )· From•that.poin\ he.walk~ .. to·the jjrst. line curtain.outby 

the last open crosscut and discovered that there was notidieck'.c'urtain at that point (Tl'; 42.) 

As a result, the air was sh()rt circuiting through 1he .area rather than· going up to the face area 

· where the miner was cutting. (Tr. 42.) 

Based on these observations, Inspector Creasey issued Citation No. 6665589 to 

Cloverlick alleging a violation of section 75.370(a)(l) of the Secretary's regulations, 30 C.F.R. 

§ 75.370(a)(l).2 The "Condition or Practice" alleged to result in this violation was stated as: 

The operator is not following the approved ventilation plan 

in effect at this mine. The Joy Miner, SIN JM5984, was observed 

cutting and loading coal in the No. 2 Heading on the active 002 

MMU. When an anemometer was held up behind the exhausting 

line curtain, it would not turn. The ventilation plan requires 6,000 

2 Inspector Creasey issued the citation as a 104(a) citation, 30 U.S.C. § 814(a), alleging 

that the violation was S&S and resulted from "high" negligence. (Govt. Ex. 4 at 1.) On 

September 18, 2007, he modified it to a 104(d}(l) citation. (Govt. Ex. 4 at 2.) On October 29, 

2008, the day before trial, he modified it back to a 104(a) citation. (Govt. Ex. 4 at 3, Tr. 41.) 

31FMSHRC1381 
c:fm of air and 60 FPM Mean Air at the face where coal is being 

mined, cut, or loaded. The first open crosscut inby the return 

brattice line did not have a block curtain in it and the section intake 

air was short circuiting into the return at this location. There was 

visible dust in the area of the miner and outby in the #2 entry. The 

miner was cutting approximately 30" of rock in this area. 

(Govt. Ex. 4.) Section 75.370(a)(l) provides that: ''The operator shall develop and follow a 

ventilation plan approved by the district manager. The plan shall be designed to control methane 

and respirable dust and shall be suitable to the conditions and mining system at the mine." 

The ventilation plan at Cloverlick's Mine No. l requires 6,000 cfin of air at the "inby end of the 

line curtain used a[t] the working face" where MMU 002-0 is being operated. (Gov't Ex. 6 at 

12.). 

Charles Dewayne Baker was the second shift section foreman at Cloverlick when the 

citation was issued. (Tr. 67.) He testified that all the curtains were hung in the No. 2 section 

when he completed his pt:e-shift examination, somewhere between 9:00and,t1:00 p.m. (Tr. 71.) 

When Baker took an air sample, at that time, it was ''well above" 6,000 cfm. (Tr. 72.) 

. · ·Baker related that he was not·present in the No~.2 heading.when the inspector made his 

·aitrteading and found the missing block.curtain.at .W::oμnd •ll:30+p·.m.,. but responded to Inspector 

'Creasey~s sUmmons to ·go·.there;·;{Tr" 74.) <:.H~·asserted·that on his:amval, after the,inspectqr·told. 

him that he;did not.have any air, he stmtedto·take.his own air reading, but.did notcompleteit ·.; 

·.·becaus.e "Mtl Creasey, he seemed to ha\re a problem. arid• I wanted to. find .out what it was." .(Tr. •: 

.. 7 4:) He claimed,: however, that his "blades were .turning/' (J:r.;. 74:):.. · . . . · ; . 

. ·:· .. ~ •.. l . . . ~'." 

Baker said that he then sent two "car drivers?:' down .one· side of the entry to check for 

downed curtains and he ''walked ·down.#2 ·entry all .the way to ·the feeder.,,_ right across from the · 

feeder to check curtains myself on that side." (Tr; 74-75.) Neither the drivers nor he found any 

curtains down. (Tr. 75.) He testified that then: "I went back up to Mr. Creasey and to the best of 

my knowledge he said, 'You've got it now. You can-you can go ahead and move your miner' 

because he had my miner stopped." (Tr. 75.) 

Baker speculated that a possible reason the curtain could have been missing was that a 

scoop operator had knocked it down while going through the area. (Tr. 73.) Baker testified that 

the scoop operator had tom down curtains in the past, and he would need reminding to hang them 

back up. (Tr. 73.) He said that the operator could have tom dovm the curtain in question and put 

it back up without his knowledge, although at the time, the operator had denied tearing one 

down. (Tr. 88.) Nevertheless, Baker also contended that the scoop operator was not a good 

worker and had been subsequently fired. (Tr. 88.) 

On the other hand, Inspector Creasey testified that he was in the area approximately 25 

minutes before the curtain was replaced. (Tr. 45.) He said that the curtain was still missing 

when Baker arrived. (Tr. 63-64.) · 

31FMSHRC1382 
Neither side presented any other evidence to support their position. Indeed, it is difficult 

to discern exactly what is the company's position. Except for denying that he ever saw a missing 

curtain, Baker's testimony relies on implications, rather than direct contradictions, to attempt to 

refute the inspector's testimony. In fact, when asked by counsel for the Secretary if it was his 

testimony that the condition never existed, Baker responded: "No, ma' am. No, I'm just - I'm 

just telling you everything was up when I checked it. It was there." (Tr. 82.) fu addition, when 

discussing whether the parties wanted to submit briefs in the case, the company's representative 

said that the only thing they were contesting was high negligence, that they had no problem with 

the citation or the S&S part ofit. (Tr. 89-90.) 

Nonetheless, it is necessary to address the credibility of the witnesses to decide whether 

there was a violation. fu this regard, the inspector'stestimony was coherent, straightforward and 

not weakened by cross examination. Further, it is essentially corroborated by his notes made at 

the time of the violation. (Govt. Ex. 5 at 2.) Finally, there is no apparent reason for Inspector 

Creasey not to tell the truth. 

Contrarily, Baker's testimony was hesitant, equivocal on significant points and 

undermined by cross examination. Thus, his testimony that his ''blades were turning" and his 

implication that there was never a curtain down are questionable. Furthermore, by relating that 

•another Cloverlick foreman had been suspended without pay for three d,ays for a simil~ citation,, 

'albeit~ TO~( d)(t )-citation, he provided.a good reason for riot• admifiingthe,violation.~ .. :(Tr.;84- · 

87.) ,, ·····"· 

· · Aceordingly,.J credit the testimony of Inspector Creasey and:find that the operator ·· 

violated section 75370(a)(l) as alleged. 

·- Si~ifieant and Substantial 

Inspector Creasey designated this violation as being ''significant and substantial." He 

said that both silicosis and pneumoconiosis were likely because the miners working in the area 

·were "breathing rock dust because of the high quartz content in the rock And you also have the 

coal dust in that area too because it's just suspended in the air and no air is coming to move it 

out." (Tr. 46.) He testified that the amount of dust was extensive throughout the No. 2 entry. 

(Tr. 50.) From the evidence, he believed that the violation "[p]ossibly existed for the entire cut. 

Approximately 30 minutes." (Tr. 64.) 

The Commission has held that the overexposure to coal and quartz dust resulting from a 

violation of the rcspirable dust standards, sections 70.100 or 70.101, 30 C.F.R. §§ 70.100 or 

70.101, is presumed to be S&S. U.S. Steel Mining Co., Inc., 8 FMSHRC 1274, 1281 (Sept. 

1986); Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). The Commissioners reached 

3 Until the day before the trial, the company believed it was facing a 104(d){l) citation. 

See n.2, supra. 

31 FMSHRC 1383 
·..; .. ~·· 

this conclusion based on "the nature of the health hazards at issue, the potentially devastating 

consequences to affected miners, and the strong concern expressed by Congress for the 

elimination of occupation-related respiratory illnesses to miners .... " U.S. Steel, 8 FMSHRC at 

1281. While there can be no such presumption in this case, since a respirable dust standard is not 

involved, the same concerns still apply. This particularly true here, where the exposure was · 

extensive and could have lasted as long as 30 minutes. 

Applying the Mathies criteria, I have already found (1) a violation of a safety standard. I 

further find: (2) that the violation contributed to a discrete safety hazard, overexposure to quartz 

and coal dust; (3) that, because of the extensiveness of the dust and the length of time the 

violation probably lasted, it was reasonably likely that an injury would result; and ( 4) that the 

injury would be serious, resulting in silicosis and/or pneumoconiosis. Therefore, I conclude that 

the violation was "significant and substantial." 

Civil Penalty Assessment 

The Secretary has_proposed penalties of$15,953.00 for the three violations contested at 

the hearing. However, it .is the judge's independent responsibility to determine the appropriate 

amountofpenalty in accordance with the six penalty criteria set out in section llO(i) of the Act, 

30 U.S.C:·§ 820(i)., Sellersburg Stone Co. v. FMSHRC, 736F.2d1147, H5L(7th Cir. 1984);;. 

·lrfallace-Bi'others, Jn~., 18 FMSHRC 481,.483.-484 (Apr. 1996) '. ,·. 

In this connection, the parties have stipulatedothat the .proposed penalties will not affect· 

-the company's ability to .remain in business and thatCloverlick demonstrated good faith in 

attempting to achieve rapid compliance ·after·notificatiOn of the,violations. ((Tr. 12-13-;): I find·, -

from the allied papers that Mine No. 1 is a large mine and its controlling entity is a la,rge · . ·-:' 

company. I further find that the operator has a better than average history of previous violations. 

(Govt. Ex. 8.) 

Turning to gravity, I find that the two gas cylinder violations, Citation Nos. 6665550 and 

6665551, were not very serious. However, I find that Citation No. 6665589, the ventilation plan 

violation, was a serious violation of the secretary's standards. 

With regard to negligence, Inspector Creasey found that the operator was moderately 

negligent concerning the cylinder violations because they were "in an area where the pre-shifters 

and on-shift examiners travel through the area and they should have seen where they were .... " 

(Tr. 24, 35.) T concur with his assessment. 

I do not agree, however, with his conclusion that the ventilation plan violation resulted 

from "high" negligence. He based this conclusion on the extensiveness of the dust and the fact . 

that more than one person knew that the condition existed at the time. (Tr. 50.) Inspector 

Creasey testified that when the miner operator came out of the area he was covered with white 

dust. (Tr. 50.) He further testified that "anyone with ... reasonable mining experience would 

know that air wasn't moving in that area." (Tr. 50.) 

31 FMSHRC 1384 
However, there is no evidence that Baker, the section foreman, knew of the condition. In 

fact, the evidence is that he was not present. What evidence' there is suggests that the curtain was 

tom down by a scoop operator. At least, that is what the inspector was told after the curtain was 

re-hung and mining began again. (Tr. 54.) 

The Commission has long held that the negligence of a "rank-and-file" miner cannot be 

imputed to the operator-for civil penalty purposes. Fort Scott Fertilizer-Cul/or, Inc., 17 

FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 

1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (SOCCO). In this 

connection, the Commission has stated that: "[W]here a rank-and-file employee has violated the 

act, the operator's supervision, training and disciplining of its employees must be examined to 

detemlint:fif the operator has taken reasonable steps necessary to prevent the rank-and-file 

miner's violative conduct." SOCCO at 1464. 

To try to show "high" negligence, the Secretary introduced a citation that the company 

had received for the same violation during the previous May. (Govt. Ex. 7, Tr. 51-53.) By itself, 

that one citation does not demonstrate a lack of supervision, training or disciplining of its 

employees on the part of the operator. Furthennore, unlike this citation, the foreman (not Baker) 

was present while the violation was occurring when the May citation was-issued. (Tr. 53.) 

Firially, the foreman involved in the May citation was sUsJ)ended for three days withpμt·pay and :;; 

the scoop operator: suspected oftea.ririg down the c~ in this:cas~ was.,subsequently· fired; -(Ti\ ; 

87.;.88.} This shows ·that the operator was taking reasonable steps to prevent. rank-and-file 

mirier' s violative conduct. Accordingly, I will modify the level of negligence for Citation No; : 

. 6665589. from "high" to "low." . , · · , . l . ·. ,::· . 

... · .. ·~ •• . • • • '_· 1:: • , ' ... ·· 

,;_ "' · Taking all 6.fthesefactors into consideration, I conclude.that the following penalties are.· 

appropriat~: (I) Citation No. 6665550-$100.00; (2) Citation NO'. 6665551~$100;00; (3) Citation 

No. 6665561, in accordance with the parties agreement,-$634.00; and (4) Citation No. 

6665589-$2,000.00.4 Therefore, the total penalty in this matter is $2,834.00. 

Order 

fu view of the above, Citation No. 6665561, in accordance with the agreement of the 

parties, is AFFIRMED; Citation Nos. 6665550 and 6665551 are MODIFIED, by deleting the 

"significant and substantial" designations, and are AFFIRMED as modified; and Citation No. 

6665589 is MODIFIED, by reducing the level of negligence from "high" to "low," and is 

4 It is apparent that Citation No. 6665589 was originally assessed as a 104(d)(l) citation 

and that the penalty was not modified when the citation was modified. I took this into 

consideration in addition to the penalty criteria discussed above. 

31 FMSHRC 1385 
AFFIRMED as modified. Cloverlick Coal Company; LLC, is ORDERED TO PAY a civil 

penalty of $2,834.00 within 30 days of the date of this decision. 

d~~ T. Todd Hod;~ Senior Administrative Law Judge 

Di~bution: 

Jennifer D. Booth~ Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, ·· 

Suite 230, Nashville, TN 37219 

Richard D. Cohelia, Cloverlick Coal Company, P.O. Box 527, Benham, KY 40807 

/rps 

31FMSHRC1386 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19"' ST~'f. SUITE 443 

DENVER, CO 80202·2500 

303--844-3577/FAX 30~5268 

November 5, 2009 

PETER J. PHILLIPS, DISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. WEST 2009-286-DM 

RM MO 2008-05 

Mine ID 05-04 

Portable Crusher #4 

A & S CONSTRUCTION COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Peter J .. Phillips., Florence, Colorado, pro se; 

Richard P. Ranson, Esq., and Jason P. Kane, Esq., Ranson & 

Kane, P.C., Colorado Springs, Colorado~ for Respondent. 

Judge Manning 

. . . 

. . . This cas~ is before me on a complaint of discrimination brought·by Peter J. Phillips 

.·against A & S Construction Company ("A & S"), under section 105( c)(3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act''). Mr. Phillips contends 

that he was terminated from his employment because he complained about safety issues at the . 

Evans Pit. An evidentiary hearing was held in Canon City, Colorado. For the reasons set forth 

below, the discrimination complaint is dismissed. 

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND 

FINDINGS OF FACT 

At all pertinent times, A & S operated the Evans Pit near Pueblo, Colorado. The pit 

included a crusher and ancillary equipment used to make aggregate for asphalt and concrete 

products. Jn June 2007, the crusher was operating 24 homs a day, seven days a week. On or 

about February 12, 2008, Mr. Phillips filed a discrimination complaint with the local office of the 

Department of Labor's Mine Safety and Health Administration (''MSHA''). On November 3, 

2008, the Secretary determined that the facts disclosed dUring her investigation into the 

complaint filed by Phillips do not constitute a violation of section 105( c) of the Mine Act.1 

1 The parties were previously engaged in litigation concerning these matters. Before.the 

Secretary determined that section 105( c) of the Mine· Act had not been violated, she brought a 

temporary reinstatement case under section 105( c )(2). A & S agreed to an economic reinstatement. 

31FMSHRC1387 
On or about December 12, 2008, Phillips filed this proceeding on his own behalf under 

section 105(c)(3) of the Mine Act. The ~orriplaint of dl:scrifuination alleges that he was a wash 

plant foreman for A & Sand that on June26, 2007, he observed the scraper lying on its side. 

When he went to see what had happened, he saw Kenny McMullen, the scraper operator, shaking 

his head saying that he could not believe that he did this. When Phillips talked to McMullen, he 

could smell alcohol on his breath. Harvey Barnhard approached and Phillips told him that 

McMullen was drunk-r Phillips told Barnhard that he wanted McMullen off the property. . 

Barnhard told him to mind his own business. Phillips then called John Paul Ary and was told 

that McMullen was the only scraper operator and that he would have to stay. Phillips replied that 

he does not ''put up with anyone drinking or doing drugs on the job." (Discrim. Complaint). On 

or about September 8, 2007, when McMullen came to work drunk, Phillips told him that he was 

fired. McMullen called Ary who told him that he was not fired. Phillips subsequently told Ary . · 

that McMullen could kill someone, to which Ary responded by telling Phillips to mind his own 

business. On September 13, 2007, A & S fired Phillips for allegedly failing to show up at work 

without prior approval. In its answer to the complaint, A & S denied these allegations and 

asserted several affirmative defenses . 

. , 

A. Phillips' Request for a Second Continuance. 

This case was assigned to me on February 20, 2009, and I issued a prehearing order on . 

February 23. I issued a notice of hearing on March 23, 2009;JolloWing a conference call.wi.tb. · 

the parties, set$g the hearing for May 18~ Shortly thereafter, ~ix subpoenas wer~ sent to Phillips 

at his request.· Counsel for A & S took Phillips' deposition on April 8, 2009. As· required by my 

notice ofhearing, A & S.subniitted ~ts witness and exhibit list to me on M~y 6. On or about May 

. i4, another conf~ce c~l was held during which Phillips asked that the hearing be canc¢led. , 

because he _felt he. needed to find counsel to represent him. I orally granted Phillips'· requ~t and . , 

then issued an order on May 14 canceling the hearing so that he could find an attorney to: 

represent him in the case. 

On July 17, 2009, I held another conference call with the parties. During this call, 

Phillips advised me that he was unable to find an attorney to represent him and that I should set a 

hearing date. After discussing several possible dates, the parties agreed that the bearing would be 

held on September 9, 2009. On this basis, I issued a notice of hearing on July 20 setting the case 

for hearing on September 9. 

The parties convened on September 9 in Cafion City and Phillips was ready to proceed 

with the hearing. Phillips did not raise any objections to the hearing when I asked if there were 

On November 26, 2008, Judge David Barbour dissolved his order of temporary· economic 

reinstatement and dismissed the temporary reinstatement proceeding. 30 FMSHRC 1119 (Nov. 

2008). The Commission granted Phillips' petition for review of the judge, s dissolution of the order 

of temporary economic reinstatement. By decision dated September 9, 2009, the Commission, by 

a two to two vote, affirmed the judge's order. 31 FMSHRC (Sept. 2009). 

31 FMSHRC 1388 
any preliminary matters. (Tr. 5). After counsel for A & S finished with his opening statement, 

Phillips said "I am going to need a lawyer~" (Tr. 14). He characterized the company's opening 

statement as "nothing but lies." Id. I advised him that an opening statement is not evidence and 

that I would not consider it when rendering my decision. (Tr. 15). I reminded Phillips that I 

postponed the hearing from May until September so thathe could find an attorney and that 

during our July conference call he advised me that he was ready to proceed to hearing. (Tr. 14-

15). He replied "[t]hen..you will have to decide it and rule for them." (Tr. 15). When Phillips 

was asked why he did not get a lawyer after the hearing was postponed in May, he replied "I 

don't have no money [and} I still don't have no money." (Tr. 16). Phillips said that he called 

four attorneys including Tony Oppegard. The three Denver attorneys wanted a retainer of $2,500 

and he said. "I don't have that kind of money." Id. He indicated that he needed a lawyer after 

listening to the company's opening statement because it was ""all fabricated." Id. I did n:ot grant 

his request for second continuance of the hearing and called Phillips to the stand so that he could 

present his case. 

The Commission has not directly addressed the right to counsel issue. In Sewell Coal 

Co., the Commission reversed a judge because he set a hearing date that conflicted with a 

previously scheduled commitment of the company's counsel and then refused to continue the 

hearing upon the request of the attorney. 2 FMSHRC 2479 (Sept. 1980). The Commissio~ 

balanced the public interest in the prompt !adjudication of cas~ against the ~onveniencl'.Pfthe , : 

judge. and the party's right to be represen~d by coun&el, and concluded that the judge abused' hi$. 

discretion in denying the request fot a continuance. The Comnμ_ssion stated that "due-process . 

. has been given ... when a party bas been afforded the opportunity to obtain competeQ.t counsel .. ·:: 

, ... ;" 1d. at 2480. In Jaxsun v. Asarco, LLC., the Commission recognizedithat, when assessing .. 

: matter5 of party rq>resentation at a:liearin& judges should be guide~ )?y the Mine Act, the,·; · :· ; .·. 

Commission's PrOcedural Rules, and the.Administrative ProcedureA~t ('~APA'). 29 FMSHRG · 

616, 620-621 (Aug. 2007). The AP A provides that a party may appear at a hearing without•.· 

representation, although the party is entitled to obtain representation. 5 U.S.C. § SSS(b). The 

Commission's procedural rules· allow a party to represent himself or obtain counsel. 29 C.F .R. 

§§ 2700.3(b)(l), 2700.4(a). 

·At least one federal court has held that a judge does not abuse his discretion when, in a 

civil case, he denies a motion to continue a case a second time after tfie.:moving party failed to 

obtain counsel during the first continuance. Charles v. Rice, 999 F.2d 1580; 1993 WL 307892 

(5th Cir. 1993) (unpublished). The court held that an abuse of discretion will be found only when 

the denial of continuance " 'severely prejudiced' the party requesting it and where, 'on balance, 

the interests in favor of a fair trial heavily outweighed the interests in favor of an immediate 

trial.' "Id. at WL p. 3, citing Smith-Weik Machinery Corp. v. Murdock Machine & Engineering 

Co., 423 F.2d 842, 844 (5th Cir. 1970). 

In this case, I granted Phillips a contin~ce of the hearing, over the objection of A & S, 

so that he could obtain counsel. I set the case for hearing a second time only after Phillips 

advised me that he was unable to obtain counsel and he was ready to proceed to hearing. I chose 

31 FMSHRC 1389 
September 9, 2009, for the hearing date after making sure, during a conference call, that Phillips 

had no objection to that date. The hearing commenced as scheduled and Phillips asked for a 

continuance only after counsel for the company completed his opening statement. 2 When asked 

why he had not engaged an attorney during the summer, he replied that he did not have sufficient 

funds to pay a retainer and that he still did. not have such funds. It would have been unfair to 

A & S to grant a second continuance at the start of the hearing because A & S was prepared for 

the hearing and the company had four witnesses ready to testify. The Commission had.expended 

resources in preparation of the hearing and had retained a .court reporter. The only basis Phillips 

gave was that the company's opening statement was ''nothing but lies." I explained to Phillips 

that the opening statement was not evidence and that he would be given the opportunity to crossexamine the company's witnesses after .. they testified. He also knew, well before the hearing, that 

the coinpany would offer evidence thafdiffered from his oWn. He had a copy of the company's 

witness and exhibit lists since May 6, 2009. Phillips had a copy of the company's.six page 

answer which set forth many of the ·defenses that counsel summarized in his opening statement. 

Indeed, Phillips sent A & S a response to the answer so it is clear that he had studied it. (Ex. B). 

Congress provided that discrimination cases shall ''be expedited" by the Commission. 

(§ 105(c)(3) Mine Act). I weighed all of the factors set forth above and detennined that Phillip's 

request for a second continuance should be denied, especially since the request came after the 

hearing had started and it was unlikely that he would have been more successful in retaining an 

attorney than ·he had been. during the s1llllliier_, . . . . ~ . . ~ . ' . . ···. , .. 

B. Summacy:of'..the,testimony~ 

Phillips testified that he was· hired by A & s· ,in August 2006, after he was:fired fr.om : "· 

· another job." (Tr. 18). · He was. hiied to operate 'a loader. at the Evans. Pit near ·Pueblo, Colorado, . ·, 

.- In November of that year he started working as a mechanic at the pit. He had prior·experienae · 

working as a mechanic. on heavy equipment. Phillips testified that Darrell Fisher was his 

· supervisor at the pit and that they got along very well. Fisher was the crusher foreman at the pit 

and he supervised the pit when Harvey Barnhart was not there. Fisher became the crusher 

superintendent after Barnhart was reassigned to other pits in July 2007. {Tr. 102, 106-07, 111). 

John Paul Ary functioned as the chief operating officer of A & S. (Tr. 79-80, 140-42). Phillips 

was responsible for keeping the wash plant operating. He did not supervise anyone and he could 

not set his own hours even after he was given the title "foreman" in August,2007. {Tr. 101). 

Harvey Barnhart was the crusher superintendent for A & S and, as such, was the 

supervisor of the Evans Pit. (Tr. 80). He was also the supervisor of three other pits for A & S. 

He has worked for A & S since 1987 and has operated virtually every piece of equipment that the 

company owns. In the summer of 2007, the wash plant at the pit was operating seven days a 

week and 24 hours a day. A & S employed about 100 people in 2007. 

2 If! had not granted the company's request to make an opening statement, the trial would 

have proceeded and Phillips would not have asked for the continuance at all or he would have 

requested a continuance after one or more of the company's witnesses had testified. 

31 FMSHRC 1390 
Denise Gonzales was the office manager and safety manager for A & S. As safety 

manager, she monitored safety training to make sure that all employees received required 

MSHA/OSHA training. (Tr. 121). She also supervised enforcement of the company's alcohol 

and drug policies. She gave each new employee an employee manual, safety manual, and 

drug/alcohol policy statement. (Ex. D). She testified that the company conducts drug/alcohol 

testing when hiring employees, after serious accidents, upon reasonable suspicion, and on a 

random basis. (Tr. 123}. 

1. Events of June 26 and 28, 2007 

On June 26, 2007, McMullen partially tipped .over the scraper be was operating while he 

· was dumping overburden. Phillips testified that he\va8 in the control shack iunning the wash 

plant and he could ~ee the scraper from that vantage point. (Tr. 21). Phillips said that he was the 

first person to arrive at the scene of the accident. Phillips· testified that he could smell alcohol on 

McMullen's breath when he talked to him. Phillips also testified that Fisher arrived at the scene 

soon thereafter and he told Fisher about the alcohol on McMullen's breath. (Tr. 27). According 

to Phillips, when he told Fi_sher that McMullen should be fired, he agreed with him "l 00 · 

percent." (Tr. 25, 51-52). Phillips also testified that he called Ary to discuss the incident with 

him using Fisher's cell phone. Phillips testified that Ary replied that because McMullen was the 

company's only scraper operator; he would not be.terminated. · . , .... 

'··' . :·,, ' ;.> •.'.· 

. Barnhaitrtestified that when lie arrived at.the pit on June 26, he noticed that someone··was 

moving the trackhoe toward the area· where the overburden was being stacked in berms. :{Tr. 93). 

· . Phillips was operating the.trackhoe~ .He told Phillips to·take the .trackhoe back to the pit and to .. : 

·•. return·to the wash plant. :Barnhart testified that he·did not have.·anyother discussion with--Phillips 

: afthat time. (Tr .. 95); As the scraper dumps more overburden .on a•bemi, a-slope will develop~ . , 

Barnhart testified that McMullen should have used the bulldozer, that was parked in the area, to . 

flatten out the berm when it became too steep. (Tr. 91-95). Ifhe had done that, he would not 

have tipped the scraper. Barnhart testified that it only took about five minutes to get the scraper . . gomg agam. 

Jn his complaint of discrimination, Phillips stated that. when Barnhart arrived at the pit 

that day, Phillips told Barnhart that he wanted McMullen "off the pit today'' and that Barnhart 

told him ''to mind my own "f---ing business' " (Ex. A). Phillips testified about these events at 

the hearing. (Tr. 49-50). Barnhart testified that Phillips did not mention anything about 

McMullen having alcohol on his breath that day. (Tr. 96, 106). He also testified that Fisher was 

not at the pit on June 26, 2007, but was out of town on personal business. (Tr. 97). Fisher 

testified that he was in Silver City, New Mexico, on June 26 visiting his in-laws. (Tr. 109; Ex. 

N). He did not return to work at the pit until July 2. He could not recall any time when Phillips 

complained about employees operating equipment with alcohol on their breath. (Tr. 114-15). 

Barnhart testified that he has known and worked with McMullen for many years. 

Barnhart worked close to McMullen on June 26 and he did not smell any alcohol on McMullen's 

31 FMSHRC 1391 
breath that day or on any other day. (Tr. 103-04). He also stated that he would tenninate anyone 

using drugs or alcohol ''in a heartbeat." (Tr. 104). The company has a zero tolerance policy in 

that regard. Ary also testified that the company has zero tolerance for alcohol 

and drug abuse. (Tr. 142-3). If there is an accident caused by an employee who is impaired by 

alcohol, the financial impact would be "devastating' to the company. Ary testified that 

"[i]nsurance companies are driving our industry'' because the risk of liability is so great. (Tr. 

144). Based on his experience with Barnhart, Ary said that there is no doubt in his mind that, if 

Barnhart was made aware that an employee had the smell of alcohol on his breath, he would have 

called for an immediate test of that employee. Ary testified that he never heard that Phillips had 

complained about McMullen. Barnhart also testified that, if a scraper operator quit or was 

terminated, he could find a replacement that same day by moving another employee into that. 

position. ·(Tr. &5). - · 

On June 28, 2009~ Barnhart tenninated Phillips from his employment. (Tr. 31). Phillips 

said that he was let go after he had an argument with Barnhart. Phillips testified that this 

termination had nothing to do with the events of June 26 involving McMullen. (Tr 52-53). 

Barnhart testified that he _was eating lunch that day when Phillips approached him and said, "I 

don't like my job anymore." (Tr. 98). When Barnhart said that not everyone likes their job .all 

the time, Phillips said he was riot going to repair the wash plant when it breaks down anymore. 

Barnhart asked-Phillips~to return to the wash plant. Phillips said thathe was taking th~·restof~dte: 

week offand that he would retunfon Monday. (Tr. 98).· Atthat point, Barnhart terminated:his · · 

· empl()ymeritwiththe·company. : ., . . . 

. . . · .. : \'·. 

· · ... · Oniune29~ .Ary.called Phillips.;and.offered him,his job·back ... ·Ary told Barnhart that hth 

· rehired:hiJn 'becauSe·the company needed ·to"keep a' mechanitfwelder on staff and the company;.·; 

wa8 ·''under'the·.gUrt'"to keep the-waSh plant operating. · (Tr. 99) .. Acy testified that he wantetho ' .. · 

give Phillips a second chance; (Tr. ·t 47, 150). Fisher testified that when he returned from his. 

vacation in New Mexico, after Phillips had been rehired, he noticed a change in Phillips' attitude 

toward his work. According to Fisher, after he was hired back, "he· figured nobody could tell him 

nothing." (Tr. 112-13). For example, according to Fisher, Phillips took a longer time when 

changing a screen at the wash plant. 

2. Events of September 8, 2007 

Phillips also testified that when he came to work on September 8, 2007, he again smelled 

alcohol on McMullen's breath. (Tr. 43). Phillips testified that he told McMullen that he was 

fired, but he admitted at the hearing that he did not have the authority to fire anyone. (Tr. 44). 

Phillips testified that he complained to Fisher about this. (Tr. 23-25, 43-33). Phillips said that he 

smelled alcohol on McMullen's breath on at least one other occasion while at work. In his 

complaint of discrimination, Phillips stated that he talked to Ary that day and asked him " 'what 

if [McMullen] kills someone or himself?' and John Paul Ary told me to mind my own business." 

(Ex. A). At the hearing, Phillips testified that he did not talk to Ary about this incident. (Tr. 56-

57). Fisher testified that Phillips never told him that he smelled alcohol on McMullen's breath. 

31 FMSHRC 1392 
(Tr. 115). Gonzales testified that, according to the company's payroll records, McMullen was 

not at work on September 8, 2007. (Tr. 134.;.36). · 

3. Events of September 11 - 13, 2007 

Phillips testified that during the afternoon of September 11, 2007, he talked to Fisher 

about going to the company's facility in Cafion City to get a stretcher and other safety supplies to 

take to the Evans Pit. He also said that he called Fisher on the phone that evening to let Fisher 

know that he would was definitely getting these supplies the next day rather than going to work 

at the pit. (Tr. 33-34, 70-71). He also told him that he was going to Ace Hardware to get other 

supplies for the pit. Phillips said that he put on his work clothes on September 12 and .went to 

the Fremont Paving3 yard in Cafion City. He talked to a man in the parts area about getting a 

number of items including a stretcher. He got a purchase order from the parts man and went to 

Ace Hardware to get additional parts including plywood, a T-Square, and a socket wrench. (Tr. 

36-38). He then went home for the day at about 2:00 p.m. (Tr. 39). He normally works a 12 

hour shift at the pit, from 6:00 a.m. to 6:00 p.m. Phillips testified that he called Fisher at the pit 

and Fisher told him that ev~g was running well. (Tr. 68.;.69). In his deposition, Phillips 

testified that he talked to Denise Gonzales at the Fremont Paving office about getting a company 

truck. (Tr. 63-64; Ex. I). He could notremember this conversation: at the hearing. (Tr. 62). In 

,. his deposition, he said that he did not talk.to Fisher on September 12. (Tr. 69) . · .. 

·. ... '· .· -

Fisher testified that Phillips·failed to report to :work on September 12. ·Fisher further 

testified that Phillips never notified him that he would.not be working at the .Evans Pit on 

·September 12._ (Tr; 117, 119). At about 10:00 a~m. oh September 12, Denise Gonzales called 

·Fisher to :ask why Phillips was at her:office at Fremont Paving in;Cafion .City·instead· of at. the pit. 

, Jd •. He told her that he had no idea why Phillips .was there~.: 

Gonzales testified that Phillips spoke to her on the morning of September 12 at the 

Fremont Paving office. She testified that he was not wearing work clothes and that he told her 

that he was "running personal errands." (Tr. 132). When he asked for a company truck and cell 

phone, she replied that only Ary could· authorize that. She said that after this conversation she 

called Fisher to ask why Phillips was at the Cafion City office. 

When Phillips went to work on September 13, he started doing some repairs on the jaw 

crusher. Phillips testified that Fisher then drove up, told him he was fired, and then drove away. 

(Tr. 40). Fisher testified that he asked Phillips where he had been the day before. Phillips 

responded that he was in Delta, Colorado, working with Ary and Barnhart at a pit there. (Tr. 

117). Fisher testified that he knew Phillips was lying because Gonzales had called and told him 

he was at her office in Cafion City on September 12. Fisher called Ary to tell him that Phillips is 

no longer a dependable employee and that he "just can't use him" anymore. (Tr. 117). He also 

3 Fremont Paving & Ready Mix and A & S are affiliated companies. Both A & S and 

Fremont Paving have offices and other facilities at the same location in Cafion City. 

31FMSHRC1393 
called Gonzales. Phillips left the pit and went to the office at Fremont Paving. On the way there, 

he talked to Ary and Ary confirmed thathe was terminated:" (Tr. 149-50). 

Phillips testified at the hearing that he does not know why he was fired. (Tr. 72). Phillips 

believes that the stated reason that the company gave for terminating him was a pretext, but he is 

not sure why he was actually terminated. (Tr. 77). He said that the "main" reason he filed the 

complaint is because ether people were passing him by and getting various benefits, including a 

company truck. (Tr. 75-76). He alleged at the hearing that people who have been caught driving 

under the influence of alcohol ("DUf') have been given access to company trucks. He said that 

he complained about this to Fisher on a number of occasions. (Tr. 78). Fisher testified that 

Phillips never complained to him about employees with DUls in their driving records. (Tr. 114-

15). 

Fisher testified that he terminated Phillips because he was no longer a dependable 

employee. (Tr. 118). Phillips did not show up at work on September 12 and he did not call in 

advance to tell Fisher that he would not be there. Fisher also testified that he never would have 

authorized Phillips to buy supplies at an Ace Hardware in Canon City because the company 

employs a "parts guy" who would have bought the supplies in Pueblo. It is about a two hour 

round trip drive from the Evans Pit in Pueblo to Caiion City. (Tr. 119). 

· Phillips admitted that the company performs random drug and alcohol testing and that the 

night crew was tested for alcohol ori June·26, 2007. (-Tr .. 64 ). Phillips testified that one ., , . · 

individual tested positive as a result of this testing, but he was not fired. (Tr; 64-65). · Gonzales, 

who snpervised this test, testified that nobody tested positive for alcohol as a result of this test. _, 

·(Tr. 12-9-30). Gonzales also testified that the company'obtafus a driving record report on e:very · 

employee when they are hired and annually thereafter. {Tr. 136-38). The.company's insurance 

carrier notifies her if an employee's drivers license has been suspended. This insurance carrier is 

''very stringent" with respect to Dills and will exclude from coverage an·employee with a recent 

DUI. (Tr. 137). When an employee receives a DUI, he is usually terminated from employment. 

II. DISCUSSION WITH FURTHER FINDINGS 

AND CONCLUSIONS OF LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation." S. Rep. No. 

95-181 at 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at 

623 (1978). 

31FMSHRC1394 
'; ·:.· 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient'to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev 'don other grounds, 663 F .2d 1211 (3d Cir. 1981 ); Secy of Labor on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. 

Nevada Goldfields, Inc,.., 20 FMSHRC 324, 328 {Apr. 1998). The mine operator may rebut the 

prima facie case by shoWing either that no protected activity occurred or that the adverse action 

was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine 

operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving 

that it was also motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see 

also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987). 

A. Protected Activity 

I have previously h~ld that complaining about alcohol use is protected under section 

105( c) of the Mine Act because it directly relates to employee safety. Fletcher v. Morrill Asphalt 

Paving, 24 FMSHRC 232, 239 (Feb. 2002) ... In the present case, however, I find that it was not 

established that Phillips engaged in protected activity or that the company terminated him tr'om , , , , .. 

·his: einp1oyment as a result of any protected activity. · 

Much ·of the testimony of Phillips was internally inconsistent and was contrary to the 

objective facts established at the hearing. For ,example, in his .complaintof discrimination, .. . 

Phillips said that while he was at the scene of the, accident, Fisher '~approached~' him. (Ex. A)~ , i 

At the hearing, he testified that he had an extended~conversation with Fisher aboutMcMulleu's ,, 

alcohol abuse that day and that Fisher agreed·with him that McMullen had been drinking and that 

he should be fired. {Tr. 23-26, 51-52). He also testified that he used Fisher's cell phone to call 

Ary that day. {Tr. 42-43). Yet, the objective evidence establishes that Fisher was in New 

Mexico when these events occurred. A & S presented Fisher's credit card statement to show that 

he charged meals and other items in New Mexico with his Visa card during this period. (Ex. N). 

Phillips testimony on this issue is not credible. 

Phillips also testified that he complained about the smell of alcohol on McMullen's 

breath on or about September 8. 2007. He said that when he complained about this to Fischer, 

Fisher responded by saying "I don't know what we are going to do with this guy." (Tr. 43-44). 

Fisher testified that Phillips never said anything to him about McMullen's breath or alcohol use. 

fu his discrimination complaint, Phillips stated that he had a discussion about McMullen with 

Ary that day and Ary told Phillips to mind his own business. (Ex. A). At the hearing, he 

admitted that he did not discuss McMullen with Ary. Gonzales testified that she reviewed 

McMullen' s payroll records for September 2007 and that a time card for McMullen could not be 

located for September 8, 2007. To make sure that his time card for that day had not been 

misplaced, she checked the payroll records to see how many hours McMullen worked that week. 

31 FMSHRC 1395 
,.. .. ~ 

She discovered that he worked 48.5 hours the week that included September 8 and that this time 

was fully accounted for by the hours he worked on the othcl days that week. (Tr. 133-36). 

Consequently, she testified that McMullen was not paid for any work on September 8. I note that 

September 8, 2007, was a Saturday and it would appear that McMullen was not at work that day. 

It is possible that Phillips was mistaken about the exact date, but his account of the events is 

otherwise inconsistent. 

At the hearing; Phillips alleged that A & S allowed employees with suspended drivers 

licenses to operate company trucks and other mobile equipment. (Tr. 76-78). He said that these 

licenses were suspended by the State of Colorado due to DUI infractions. This allegation was 

not contained in his complaint of discrimination. I fmd thatthis allegation is not credible and I 

credit the evidence presented ·by A & S to rebut this allegation. Gonzales testified that · 

employees who are given DUI tickets are usually terminated because all employees are expected 

to be able to operate trucks or other mobile equipment. A companythe size of A & S would not 

take such a risk because it is unlikely that its insurance carrier would cover any liability for 

accidents caused by these employees. 

Based on the above, I find that it was not established that Phillips engaged in protected 

activity. There was no credible proof that McMullen was under the influence of alcohol at the 

.. pit. leredit Barnhart' s testimony in this regard. I credit the testimony of Ary and Gonzales :· · 

concerning the company's substance abuse policies., .l ·als(,) credit the testimony of Fisher and , , . 

Barnhart that Phillips did not communicate any concerns about the use of alcohol to company 

management. ·Phillips' testimony with respect to these issues was not credible. ·. 

·s~ Adverse Action 

Even ifl assume that Phillips engaged in protected activity, I find that it was not 

established that his termination from employment was motivated in any part by complaints about 

alcohol use. In determining whether a mine operator's adverse action is motivated by the miner's 

protected activity, the judge must bear in mind that "direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect." Sec '.Y of Labor on behalf of 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on other 

grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the discrimination 

can be proven only by the use of circumstantial evidence." Id. (citation omitted). In Chacon, the 

Commission listed some of the more common circumstantial indicia of discriminatory intent: 

(1) knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3) 

coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. 

All of the company's witnesses denied that Phillips communicated any concern that he 

could smell alcohol on the breath of McMullen. I credit that testimony as well as the testimony 

of Barnhart that he would have had McMullen tested ifhe suspected that McMullen had been 

drinking. There is no credible evidence that company mangers displayed hostility or animus 

31FMSHRC1396 
toward the protected activity. I credit the evidence presented by A & S that its managers do not 

tolerate the use of alcohol or drugs and that, if anyone is caught under the influence of these 

substances while working at the pit, they will be subjected to testing and termination if the test 

results are positive. There is coincidence in time between the alleged protected activity and his 

termination. Disparate treatment is not an issue in this case. 

I find that the re.ason A & S gave for Phillips' termination was not a pretext for an 

unlawful dismissal. A & S terminated Phillips eariier in the summer of 2007. Phillips testified 

that this termination was not the result of his alleged protected activity. Ary rehired Phillips 

because he wanted to give him a second chance and the company needed a mechanic for the 

wash plant. Phillips' description of the events of September 11through13 is not very credible. 

Fisher testified that he never gave Phillips permission to buy supplies for.the pit in·Cafion ·City on 

September 12 rather than work at the wash plant that day. I credit this testimony. 11ie pit and 

crusher facilities were operating full bore at that time. Because it vibrates, the wash plant is 

prone to mechanical breakdowns and Phillips was needed to make repairs to keep the plant in 

operation. (Tr. 87). It is highly unlikely that Fisher would have wanted Phillips to take .the day 

off so he could get a stretcher and miscellaneous supplies in Canon City. Gonzales testified that 

Phillips told her he was rwllring personal errands that day. Fisher testified that when he asked 

Phillips why he was not at work on September 12, Phillips replied that he was working at another 

· pit·:with Bartihart. I find that the decision of A & S to temtinate, Phillips was not at all:related to 

'-oofilplaints· about alcohol use. 

III. ORDER 

For the reasons set forth above the discrimination complaint filed by PeterJ. Phillips 

· against A & S Construction Company under section 105(c) ofthe Mine A · DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Juμge 

Peter J. Phillips, P.O. Box 41, Florence, CO 81226 (Certified Mail) 

Richard Ranson, Esq., Ranson & Kane, PC, 3475 Briargate Blvd, Suite 201, Colorado Springs, 

CO 80920 (Certified Mail) 

RWM 

31 FMSHRC 1397 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENlJE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

November 18, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

-Petitioner 

CIVILPENALTYPROCEEDINGS 

Docket No. WEVA 2007-712 

A.C. No; 46-01433-121119 

v. . . ' ·J. :· ••• 

Docket No. WEV A 2008-308 

A.C. No. 46-01433-132560 

Docket No.· WEV A 2008-1536 

A. C. No. 46-01433-155218 . 

CONSOLIDATION COAL COMPANY, 

Respondent 

Loveridge No. 22 Mine 

DECISION 

.Appearances: John Strawn, Esq1, Office of-the Solicitot,:U$. Department ofLabor,,Philrulelphia, 

Pennsylvania;.(>nbehalf of the.Petitioner; · · ·· : ·· ·. ·.· '·· · · 

Rebecca Oblak, .Esq.~.Bowles,:·Rice, .McDavid Graff & Love, LLP, Morgantown, 

West Virginia, on behalf of the Respondent. ··.! .... 

. 'Before:·. . ,:_ · Judge Melick :· ... . , . .. 

·. These cases are before me upon petitions for ~ivil penalty filed by the Secretary of Labor 

pursuant to section 105(d) of the Federal Mine Safety and Health Act ofl977.;30 US.C. § 801 et 

seq., the "Act," charging Respondent Consolidation Coal Company(Consol) with multiple violations 

of mandatory standards and proposing civil penalties for those violations. The general issue before 

me is whether Consol ·violated the cited standards as charged and, if so, what is the appropriate civil 

·penalty for those violations. Additional specific issues are addressed as noted. Decisions approving 

partial settlements of a number of charging documents have been issued in these proceedings so that 

only the four charging documents discussed herein remain for decision. 

Order Number 7100826 

This order, issued pursuant to Section 104( d)(2) of the Act, alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.400 and charges as follows: 1 2 

1 Section 104(d) of the Act provides, in relevant part, as follows: 

(1) If, upon any inspection of a coal or other mine, an authorized representative of the 

Secretary finds that there has been a violation of any mandatory health or safety standard, 

31 FMSHRC 1398 
Combustible material in the form of damp loose coal and coal fines is being allowed to 

accumulate under he 10-D Section, 065-0 MMU, coal conveyor belt from 14 Yz block to 15 

Yz block for a distance of 140 feet. The accumulation is up to 10 inches in depth under the 

bottom belt and is rubbing the bottom of the belt and accumulating to the extent at which it 

is pushing the bottom belt up into the belt structure. Several bottom rollers in the cited area 

are completely covered in coal fines. There is one stuck roller located at 15 block within the 

area. The mine operator has engaged in aggravated conduct constituting more than ordinary 

negligence.· This· violation is an unwarrantable failure to comply with a mandatory standard. 

The cited standard provides that "[ c ]oal, dust, including float coal dust deposited ·on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

·permitted to accumulate in active workings, or on diesel-powered and electric equipment therein." 

Jeremy Ross, an inspector for the Department of Labor's Mine Safety and Health 

Administration (MSHA), has a degree in mechanical engineering from the West Virginia University 

and several years of industry experience. On May 29, 2007, Ross was conducting an inspection at 

the Loveridge No. 22 mine_ as part of a regular quarterly inspection and a five day spot inspection 

for methane. Inspector Ross was accompanied by MSHA trainee·Chad Curranc~ Respondent's 

safety representative Jeff,Taylor, and by United Mine Work~ of America (UMWA) Safety ! 

and ifhealso·finds that, while.the'conditionscreated-bysuch violation do not cause· . 

imminent danger~ such violation is of such nature as could'significantly and substantially 

contribute to the cause and effect of a coal or· other miner safety or health hazard, and if he 

·. finds such violation to be caused by an unwarrantable· failure of.such operator to cotiiply· 

With such mandatory health or safety standards; he shall include such finding in any< .· · 

citation given to the operator under this Act. If,· during .the same inspection or any · 

subsequent inspection of such mine within 90 days after the issuance of such citation, an. 

authorized representative of the Secretary finds ·another violation of any mandatory health 

or safety standard and finds such violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue an order requiring the operator to 

cause all persons in the area affected by such violation, except those person referred to in 

subsection ( c) to be withdrawn from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that such violation has been 

abated. 

(2) If a withdrawal order with respect to any area in a coal or other mine has been issued 

pursuant to paragraph (1 ), a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent inspection the existence in 

such mine of violations similar to those that resulted in the issuance of the withdrawal 

order under paragraph (1) until such time as an inspection of such mine disclosed no 

similar violations. Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable to that mine. 

2 There is no dispute that the precedential orders required by Section 104( d)(2) existed. 

31FMSHRC1399 
Committee representative RichardHarrison.3 The inspection party traveled to the 10-D Section, 065-

0 MMU. The purpose of the section was to develop a longwall panel and Respondent was behind 

schedule at the time of the inspection. 

The inspection party traveled to the face of the 10-D section and then proceeded outby 

through the belt entry. . Respondent was utilizing a continuous haulage system in the section 

consisting of a mobile belt called. a flexible conveyor train (FCT) and a stationary belt called a 

"dynamic move up" (DMU). The FCT was 570 feet long and operated immediately behind the 

continuous miner. The FCT transferred coal from the continuous miner to the stationary DMU belt. 

The DMU belt was 760 feet long and transferred the coal in turn onto the pennanent section belt. 

The outby end of the FCT was connected to the DMU and rode back and forth on rails on top of the 

DMU belt. As the miner tranimed forward or backward, the FCT rode forward and backward in · 

unison. When the section belt was advanced, the FCT would be secured on top of .the DMU. The 

DMU would then propel the tandem forward and pull·the section belt along behind. 

According to Inspector Ross, there was an accumulation of combustible material stretching 

over 140 feet from 14 Yz ]?lock to the 15 Yz block under the DMU conveyor. He testified that loose 

coal and coal fines extended the width of the belt (approximately 60 inches), and varied from two 

to ten inches in depth. He found that the coal was deepest at the.outby·end near the DMU drive unit 

but that it w~ also up,JO inches deep inbyatseveralother locatiotts. The coal was black in color. 

and most ofit was dry. . 

The belt was running when the inspectors fitstobserved.itsometime between 10:22 a.m. and 

,' 11: 15 .a.m .. but rio. coal -was loaded· on the,belt . Aft¢r:. the. belt was shut ~down .. Jnspector Ross 

. examined the accumulation withhis walking stick:anddiscovered at-least thr~ buried rollers~ The· 

insp.ectors testified that after the violation had been abated~and the accumulation had been removed, 

they discovered additional rollers which had been buried and hidden from view; In the deepest part 

of the accumulation they found that the coal had pushed the lower belt up· so that it was no. longer. 

in contact with the rollers. The belt was riding in the coal and rubbing against the belt structure at 

that location. 

Inspector Ross opined, based on his observations and discussion with Respondent's Project 

Engineer/Foreman, Brooks Barker, that the accumulation had been created by carry-back spillage. 

The scrapers on the belt were not removing all the particles of coal from the DMU belt where it 

dumped onto the permanent section belt. As a result, some of the coal was sticking to the underside 

of the lower belt and it was carried back inby until it fell off the belt onto the mine floor. 

The credible observations of Inspector Ross were also corroborated, in significant respects, 

by Inspector Currance and by UMW A safety representative Harrison and their testimony clearly 

supports a violation as charged. In reaching this conclusion I have not disregarded Respondent's 

3 At the time of hearings Trainee Currance had become a qualified MSHA inspector (Tr. 

505). 

31FMSHRC1400 
arguments that the accumulation did not consist of coal but rather of incombustible rock from the 

mine floor. However, I find the Secretary's evidence to the contrary to be more credible. The 

Secretary's witnesses found that the accumulation was black while the bottom rock on the mine floor 

was gray. 

They squeezed the material and it crumbled like coal. It did not ''ball-up"like other material 

or mud would have .. They also found that the coal also reflected light differently than rock would 

have and concluded from its weight and texture that it was coal rather than rock. Even Respondent's 

witness, Brooks Barker, admitted that the bottom rock was easily distinguishable from coal. Under 

the circumstances and considering the credible testimony of Inspector Ross, corroborated in all 

significant respects by Inspector Currance and UMW A representative Harrison, I have no difficulty 

finding that; indeed, the cited accumulation consisted of coal. 

Respondent argued alternatively that, even if the accumulation was coal, it was created by 

rib sloughage rather than created over· time by carry-back spillage. The credible testimony is, 

however, that there were not large pieces of coal in the accumulation, thus indicating that the coal 

had been mined by the continuous miner and had not fallen in larger pieces from the rib. 

The Secretary alleges that the violation was "significant and substantial". A violation is 

· properly designated as "significant and substantial" if, based on the particular facts surrounding,that. 

violation, there exists a reasonable likelihood that the hazard contributed to wilLresult in an injury 

or illness of a reasonably serious nature. Cement DivisiQn; National Gypsum Co., 3 FMSHRC 822,. 

825 (April ·'1981); . In Mathies Coal Co., 6 FMSHRC 1, 3.:4 (January 1984), the Commissfon 

explained: , , . ·, : 

In order to ·establish that a violation of a mandatory standard is significant and substantial · 

under National Gypsum the Secretary must prove: . (1) the underlying violation of .a 

mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to 

safety - - contributed to by the violation, (3) a reasonable likelihood that the hazard 

contributed to will result in injury and ( 4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 

9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). and also that the likelihood of injury be 

evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 157 4 (July 1984); See also HaijWay, Inc., 8 FMSHRC 8, 12 (Jan.nary 1986) and Southern Ohio 

Coal Co., 13 FMSHRC 912, 916-917 (June 1991). 

31FMSHRC1401 
I have found that the first element has been established i.e. that there was an extensive 

accumulation of combustible material iri violation of 30C.F.R. § 75.400. Based on the credible 

testimony I also find that the accumulation contributed to a discrete safety hazard by creating a fire 

danger to miners working or traveling in the belt entry. The second element is therefore also 

established. I also find that the credible testimony establishes a reasonable likelihood of a belt fire 

occurring because the loose coal accumulation was extensive and ignition sources were present. A 

number of rollers and.the belt were running in the coal and had begun heating and drying the coal. 

The belt was also rubbing the belt structure itself. The inspectors observed the coal crusting over 

where the rollers and belt had been running in the accumulation evidencing that the resulting friction 

had already begun heating the coal. The credible evidence also shows that, in addition to being black 

and dry, the coal was also made of small particles which are easier to ignite and make a fire that 

much more likely.· 

The existence of these factors clearly establishes the third element under the Mathies criteria. 

See Mid-Continent Resources, 16 FMSHRC 1218, 1222 (June 1994) and Amax Coal Company, 

19 FMSHRC 846, 849(May1997). The fourth element of the Mathies test requires the S.ecretary 

to establish that the injury will be of a reasonably serious nature. The credible evidence establishes 

that the injuries to the miners would include smoke inhalation, carbon monoxide poisoning, and 

burns. These are of a serious nature and accordingly I find that the Secretary has met her burden of 

proving that the violation was "significant and substantial" and of high gravity. 

- .: ' . . . ~ . :.·' . . :·,. ; .. , 

-. · l gfso;·find·that the violation was the result of high negligence and ''unwarrantable failurd.' , 

· to comply with the cited standard. Unwarrantable failurejs "aggravated conduct, constituting inore . 

than ordinary negligence, by a mine operator in relation to a violation of the Act.•• Emery Mining , 

Corp., 9 FMSHRC 1997, 2004 (December 1987). Unwarrantable failure is characterized ·by such . 

. conduct as ~'reckless disregard,'' "intentional misconduct," ''indifference," or a "serious lack of: 

reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 

{February 1991); see also Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 157 {2d Cir. 

1999); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) {approving Commission's 

unwarrantable failure test). Moreover, the Commission has examined the conduct of supervisory 

personnel in determining unwarrantable failure and recognized that a heightened standard of care 

is required of such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 

{December 1987), S&H Mining, Inc., 17 FMSHRC 1918, 1923{November1995). 

This Commission, in determining unwarrantable failure, has considered whether an 

operator's conduct was aggravated by looking at all the facts and circumstances to see if any 

aggravating factors exist, such as the length of time that the violation existed, the extent of the 

violative condition, whether the operator wasp laced on notice that greater efforts were necessary for 

compliance, the operator's efforts in abating the violative condition, whether the violation was 

obvious or posed a high degree of danger, and the operator's knowledge of the existence of the 

violation. Lopke Quarries, Inc., 23 FMSHRC 705, 711 {July 2001). The credible testimony 

establishes in this case that the coal accumulation was obvious and extensive. The loose coal and 

coal fines extended over 140 feet and even lifted the belt off some rollers. Moreover it took ten 

31 FMSHRC 1402 
miners working for over six hours to re.move the coal. The accumulation also exposed the miners 

who worked and traveled in the belt entry to ·a belt fire iif'a gassy mine with ignition sources. This 

evidence, alone, is sufficient to establish high negligence and unwarrantable failure. 

I also find, however, from the credible testimony of the inspectors and UMW A safety 

representative Harrison, that the accumulation had existed over multiple shifts. The frictional 

heating by the belt and-rollers had dried out and crusted over the accumulation. The credible 

testimony shows that this would have taken more than one shift, since the coal spillage from the belt 

is initially wet due to belt sprays designed to keep the dust down. In addition, the accumulation was 

formed by carry-back spillage and would have taken several shifts to cover the 140 foot area. 

Respondents' s records also show that the accumulation· had existed for several days without 

attention. Respondent's production records indicate that only 15 5 tons of coal were produced and 

carried on the DMU belt on the midnight shift prior to the inspection on Tuesday, ~ay 29, 2007. 

The credible record shows that this would have been insufficient to create the 140 foot accumulation 

observed by the inspectors. The belt had been idle for three days prior to the inspection because of 

Memorial Day weekend May 26, 27, and 28, 2007. On Friday, May 25, 2009, Respondent produced 

more than ten times the amount it did on the midnight shift May 29, 2007 (Govt. Exh. 5 at pp. 5, 6 

of 13). Over 1,600 tons of coal had been produced which could have created sufficient carry-back 

spillage to result in the condition observed by Inspector Ross. This evidence, alone, is sufficient to 

establish high negligence and unwarrantable'failure. 

• j , ·' 'I further :rmd that Respondent was on notice.that greater-efforts were required to comply with 

the cited standard~ .Inspector Ross cited the same DMU belttwice'.within the prior two months for 

other Serious accumulations. He issued. Order No .. 7100729 omMarch 30, 2007 and Citation No. 

7100732 onAprit9, 2007 (Gov't Exhs. 6.and7). Mr.-Barkerwas in charge ofthe DMU through this . 

period. Ross held a meeting with mine management~ includirig the stip~tendent, mine foreman, 

and safety director~ on April 3, 2007, prior to the subject quarterly inspection and emphasized the 

need to keep the DMU conveyor unit clean and to prevent accumulation of coal .. In addition, 

Respondent received 104 citations and orders for violations of 30 C.F.R. § 75.400 in the fifteen 

months prior to the subject order (Gov't Exh 15). This evidence, alone, is sufficient to establish high 

negligence and unwarrantable failure. · 

Finally, it is apparent that Respondent's Project Engineer/Foreman, Brooks Barker, had 

actual knowledge of the cited accumulation under the DMUbelt. Barker told the inspectors that the 

DMU conveyor belt was having ongoing spillage problems because the belt scrapers were not 

removing the smaller particles of coal from the belt. He stated that he had therefore removed the belt 

scraper (10 days earlier, on May 19, 2007) and sent it to an outside contractor for modification. 

When the inspectors asked where the scraper had been positioned before it had been removed, 

Barker stated that it was located where the accumulation was. Significantly, Barker had just arrived 

on the section and had not yet arrived at the cited area. Despite his awareness of the spillage 

problem, Barker allowed production to continue while waiting for the scraper to return from the 

contractor. Indeed, Barker stated that the spillage problem pre-dated the first two citations 

Respondent received on the DMU on May 30, 2007, and April 9, 2007. This evidence is sufficient 

31 FMSHRC 1403 
to independently establish high neglig<m.c~ ,and unwamμ1table failure. Under the circumstances it 

is clear that the Secretary has sustained> her.burden of proving that the violation at bar was the result 

of high negligence and unwarrantable failure. 

Citation Number 7100823 

This citation, issued by Inspector Ross on May 29, 2007, under Section 104(a) of the Act, 

alleges a "significant and substantial" violation of the standard at 30 C.F .R. § 7 5 .1722( a) and charges 

as follows: 

The return wire rope pulley for the miner cable tensioner on the 10-D Section DMU 

'coal conveyor unit is.not provided with-a guard to prevent persons from coming in 

contact with the pulley. The pulley is 14 inches in diameter, 24 inches off of the 

mine floor, and directly along the side the 10-D Section belt travelway. The 

travelway is 36 inches wide at this location. Miners are required to walk the belt 

each shift to conduct an examination. 

The cited standard provides that "[g]ears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may cause injury to persons shall be.guarded." 

During his: inspection 011 May 29; .2007, Insp.ector Ross observed that the return wire rope· .· 

. pulley on theDMUcoal conveyor unit was unguarded. There is nodi8pute thaHhe pulley had never -. 

been guarded'and that it was provided.by the manufacturer without guarding. ·.The pulley was located 

. alongside the walkway where miners travel and. the walkway was about thirty-six inches wide· at this 

. point. This walkway was also muddy and slippery thereby, :according·Jo inspectorRoss, increasing 

. the risk that miners could slip and fall into the pulley (Govt. Exh. 4 p.3of 8 and Gov't Exh. 8). 

Within this framework of credible evidence it is readily apparent that the cited pulley "may 

be contacted by persons and which may cause injury to persons" thereby requiring guarding. I do 

not find, however, that the violation was "significant and substantial" or was the result of high 

negligence. I find that the Secretary has failed to sustain her burden of proving that there. was a 

reasonable likelihood that the hazard contributed to would result in an injury and a reasonable 

likelihood that the injury in question would be of a reasonably serious nature. In this regard, it is 

undisputed that the cited pulley is generally stationary and when it moves it travels very slowly i.e . 

. 85 miles per hour. There is also credible evidence that some protection was provided by the design 

and location of the troughs. Finally, there is evidence that MSHA inspectors including Inspector 

Ross had examined the section at issue on five occasions between March 30, 2007, and May 29, 

2007, and failed to find any violation regarding the subject pulley. If, indeed, there had been such 

a serious hazard at this location it is unlikely that it would have repeatedly been overlooked by 

experienced MSHA inspection teams. Indeed, another violation was cited at the very same location 

on April 26, 2007 ,(Citation number 6604312) which required guarding along the DMU and past the 

location of the pulley in question. 

31 FMSHRC 1404 
As previously noted, I also find that the violation was the result of low to moderate 

negligence. Respondent relied in part o:il the fact that the manufacturer did not provide any guarding 

at the cited pulley, and the fact that some guarding had been provided by the design and location of 

the troughs located in front of the pulley. fu addition, MSHA inspectors themselves during five 

recent prior inspections, including one at the very same location of the DMU conveyor unit, had not 

seen fit to have cited or even warned the Respondent of what has now been deemed by the Secretary 

to have been a "signifiGant and substantial" violation. The violation alleged in Citation Number 

7100823 and the penalty proposed by the Secretary for that citation must accordingly be modified. 

Order Number 7100827 

· ' This order; issued on May 29; 2007; under Sectionl 04( d)(2}of the Act, alleges a "significant · 

and substantial" violation of the standard at 30 C.F.R. § 75.360(a)(l) based on the findings of 

Inspector Ross that the preshift examination for the day shift on May 29, 2000, was inadequate 

because there was a failure to record two hazardous conditions, namely, the unguarded return wire 

rope pulley on the DMU coal conveyor unit (Citation Number 7100823) and the accumwation of 

combustible material exis~g over 140 feet from the 14 Yz block to the 15 Yz block under the DMU 

conveyor (Order No. 7100826) . 

. The cited standard provides in part as follows: 

Except as provided in paragraph (a)(2).oftbis· section; ··a.certified:. person designated by the 

'operator nilist make a preshift. examination within 1 hours ·preceding the beginning ofany 

· ·8-hour interval during which, any person: is scheduled to work or travel underground. · No 

. petsoi1 other than certified examiners may .enter or temai1r in. any underground area unle8s .· 

. a preshift examination has been completed for the established 8,-hour interval .• The operator ' 

must establish 8-hour intervals of time subject to the required preshift examinations. 

As previously discussed in connection with the underlying order (No. 7100826), the coal 

accumulation was extensive and Consol had been cited twice before within a two month period for 

serious accumulations at the same locations (Govt. Exh. 6.·and 7). In addition, Inspector Ross had 

met with Consol management on April 3, 2007, prior to the subject inspection and emphasized the 

need to keep the DMU conveyor unit clean to prevent the accumulation of coal. Finally, as 

previously discussed, Respondent's own project engineer/foreman, Brooks Barker, had actual 

knowledge of the accumulation but did not ensure that it was recorded and/or addressed. Under the 

circumstances, it is clear that the Secretary has met her burden of proving the violation herein. 

For this same reasons that the underlying violation was found to be "significant and 

substantial" the instant violation was also "significant and substantial". The failure to report and 

correct such significant and hazardous violations is likewise a "significant and substantial" violation. 

The violation herein was also the result of high operator negligence and ''unwarrantable failure" to 

comply with the cited standard. The Respondent's mine examiners are agents of the operator and 

their failure to report the extensive coal accumulation is properly imputed to the Respondent. 

31 FMSHRC 1405 
Rochester and Pittsburgh Coal Company 13FMSHRC189,195-196 (February 1991). For the - . J ~. - . 

reasons previously stated with respect to the 'underlying vk>fation, failure to report that violation was 

also the result of high operator negligence and ''unwarrantable failure". 

Order Number 7100548 

This order,-issaedonFebruary27, 2007, under Section 104(d)(2) of the Act, alleges another 

"significant and substantial" violation of the standard at 30 C.F.R. § 75.360(a)(l) and charges as 

follows: 

The pre-shift examination for methane and hazardous conditions that was conducted on 

02/2712007for the day shift crew on the8-D longwall, 062.:o MMUsection is inadequate in· 

that the hazardous conditions described in violation #7100547 were not reported in the 

operators records of examinations and had not been corrected at the time of this inspection. 

The following conditions were obvious to this inspector as soon as he entered the effected 

[sic] areas. The record book indicates that only condition that exist [sic] is the area from #53 

block to #50 bloc1' needs dusted, this condition has been entered in the record book for the 

past 9 shifts. The listed conditions would be obvious to any prudent person especially 

examiner's charged with the responsibility ofconducting an examination of the mine. The 

mine operator was. previously put on ,notice for . the same type of conditions. The· mine 

operator has engaged in aggravated conduct constituting more than ordinary negligence. 

This violation is an unwarrantable fail1ire to comply with a mandatory standard. · · • 

MSHAinspector Ronald Postalwaittestified thaton F ebruary27, 2007, he inspected the 8-D 

longwall belt, 062..:0 MMU section at the mine as a part.of a regular·q:uarterlyinspection and five day 

i spot inspection.for ·methane. Postalwait was ;accompanied. on~ bis. inspection by UMWA safety 

representative Samuel Woody and Respondent's safetyrepresentativeJ ohn Larry. The longwall belt 

transfers large amounts of coal from the longwall to the surface. 

Postalwait observed what he considered to be large accumulations ofloose coal and coal dust 

along the belt stretching over 3,500 feet. On the basis of these accumulation, he issued Order No. 

7100547 for a violation of 30 C.F.R. § 75.400. This order was settled prior to trial and is now a 

finaI order of the Commission. The facts underlying Order No. 7100547 are therefore established 

for purposes of these proceedings and cannot now be challenged. Peabody Coal Co., 11 FMSHRC 

2068, 2092 (October 1989); Ranger Fuel Corp, 10 FMSHRC 612, 617-619 (May 1988). In any 

event, an independent review of the facts supports the violation herein as charged. 

Inspector Postalwait issued Order No. 7100547 for a Section 104( d)(2) violation of30 C.F .R. 

§ 7 5 .360( a)( l) because the hazardous belt accumulations were not recorded in the day shift preshift 

examination report. The preshift was performed between 5:00 a.m. and 7:00 a.m. that morning by 

Michael Fleece. Postalwait discovered the accumulations at approximately 11: 15 a.m. According 

to the credible testimony of Postalwait, the accumulations he observed were extensive. Loose coal 

and coal fines extended from the 64 block to the 62 block and from the 53 block to the 48 block. 

31 FMSHRC 1406 
The accumulations were on both sides of the belt and me~ed from two inches to five inches deep. 

The combined width of the accumulations varied ' frOm ·one foot to three feet. Coal dust 

accumulations stretched from the 64 114 block to the 57 block, from the 53 block to the 48 block, 

and from the 42 block to the 39 block. Both the loose coal and coal dust accumulations were black 

in color and powder dry. UMW A representative Woody agreed with his description of the 

accumulations. Woody's contemporaneous notes further corroborate the testimony. 

Based on the credible and corroborated testimony, I find that the accumulations cited were 

obvious. The coal dust accumulations stood out because they completely blackened the previously 

rock-dusted surfaces in the entry including the mine floor, ribs, belt structure, water line, and roof 

supports straps. There were also footprints in the coal dust in the walkway which were in plain view. 

Woody agreed with the-inspector and testified that the conditions were very obvious. 

Postalwait opined that the accumulations had existed for more than a shift and should have 

been observed and reported by the preshift examiner. He concluded that the loose coal 

accumulations had been formed by belt spillage. He noted that coal from the belt is wet because of 

the water sprayed at points _along its length used to keep dust down. However, when he examined 

the accumulations by hand he found that they were dry throughout. According to the credible 

testimony by Postalwait it would have taken m9re than one shift for the loose coal to have dried out 

•to the extent· he. observed. Furthermore, he·observe9. that. the. air flow:. in; the belt entry was. low , 

· (approximately70 feet per minute) and he.concluded.thereforethatit would have take_μ,moi;-ethan _ 

one shift for this air flow to dry the accumulations. He <'>pined m9feover that.it would have ·taken·. 

more than one shift for this air flow to have spread .the coal dust .over the. 3,500 foot area. : Woody 

agreed that the accumulations had existed prior to the preshift examination and that the ex:aminer . 

·· should have observed and reported them. · 

,.·. .· -~~ ... 

The credible evidence also shows that the accumulations has been created some time before 

and had been left uncorrected. According to Postalwait, when he observed the accumulations, no 

spillage was being created by the belt. Mr. Woody agreed and testified that the belt was running true 

during the inspection. According to the credible evidence there were no defects that were creating 

coal dust at the time either. In addition, the bearings that had fallen out of five defective rollers cited 

by Postalwait had been completely covered by coal dust. The loose coal accumulations had also 

been covered with coal dust. Therefore the accumulations and defective rollers had not been created 

simultaneously. The loose coal accumulation and defective rollers had occurred even earlier than 

the coal dust accumulation. Within this framework of credible evidence, it is clear that the 

accumulation had existed well before the day shift preshift examination of February 27, 2007, that 

the conditions were obvious and accordingly, that the violation is proven as charged. Indeed, 

Respondent's safety representative, Mr. Larry, acknowledged during the inspection that the 

conditions cited by the inspector were a violation and should have been reported by the examiner. 

For the reasons cited in the Secretary's post hearing brief I can give Mr. Larry's exculpatory 

testimony at hearings but little weight. 

31FMSHRC1407 
I also find that the violation .was "significant and. substantial" and of high gravity. 

Respondent's failure to report the accwririlations in the fortgwall belt entry clearly exposed miners 

to serious hazards. ·Five belt rollers from the 60 block to the 57 block were missing bearings in the 

midst of one of the cited coal dust accumulations. The bearings had failed and fallen out of the 

rollers. The rollers were turning metal-on-metal on the inner shaft and both the shaft and the rollers 

had turned a bluish color from the frictional heating. Indeed, Respondent's examiner, Mike Fleece, 

agreed at trial that a blue color indicated that the metal had been heated. Inspector Postalwait has 

seen rollers in this condition produce sparks and ignite coal. Sparks from the rollers would likely 

also have ignited the coal dust on the mine floor below and on the belt structure. Furthermore the 

rollers would likely also heat up the belt and ignite the coal dust on the belt structure. UMW A 

representative Woody also agreed that the rollers presented an ignition source to the coal dust around 

them. 

The conditions in the mine made the likelihood of a fire great. This is a gassy mine and the 

presence of methane could exacerbate any belt fire. Postalwait measured 0.45% methane at the 63 

block in the longwall belt entry. The coal dust accumulations below and around the defective rollers 

presented an enhanced risk of fire. The evidence confirms that these smaller particles of coal are 

easier to ignite and, once started, can ignite larger pieces of coal. 

The credible evidence also establishes that a nlimber of miners would have been exposed to 

· serious injury-froin a belt fire. Examiners, belt cleanm; lilaintenarice :crew and other miners triwel ' 

· aridworl{on the belt. ;The stage loader operatorwas alsojust iilby.the accumulations and would also· ' . 

have been affected by a fire. Finally, if a fire affected a ventilation control, the smoke from· the fire 

· could travel to the face and endanger the face crew and miners fighting a fire would also have been 

exposed to injury. Miners would likely sustain bums:, smoke inhalation, and carbon .monoxide . 

poisoning. While I have not disregarded the exculpatory testimony of Mr. Larry, again, for the. 

reasons stated in the Secretary's brief, I can give that testimony but little weight. 

I also find that the violation was the result of high negligence and "unwarrantable failure". 

The credible evidence is that the accumulations were extensive and obvious. The loose coal and' 

coal dust accumulations extended from block to block over the 3,500 foot total length of the area. 

The loose coal was up to three feet wide including both sides of the belt and were up to five inches 

deep. Furthermore, the cleanup required eight miners working for almost four hours. 

The credible evidence also establishes that the accumulations had existed for more than a 

shift, had not been addressed and that they posed a high degree of danger to miners. Moreover, 

Respondent had previously been placed on notice concerning problems with accumulations and with 

inadequate preshifts. fuspector Postalwait credibly testified that he specifically discussed the issues 

with the mine management including the superintendent during the previous two quarterly 

inspections. In addition, the Respondent had received 16 citations/orders for violations of30 C.F .R. 

75.360(a)(l) and 114 for violations of 30 C.F.R. 75.400 in the fifteen months prior to the issuance 

of the subject order. 

31 FMSHRC 1408 
Civil Penalties 

Under Section 11 O(i) of the Act, the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the operator in 

committing the yiolation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operator's ability to continue in 

business. 

The parties have stipulated to four of the six penalty criteria i.e. the size of the business, the 

history of previous violations, the good faith of the operator in obtaining compliance after the 

issuance of the charging documents at issue, and the effect of the penalties on Respondent's ability 

to continue in business. Respondent produced 67,404,718 coal in 2006 including 6;383,219 tQns at 

the subject mine. ReSp<>ndeitt is accordingly a large mine. Respondent has been assessed for a total 

of85 l charging documents based upon 689 inspection days in the 15 months immediately preceding 

the issuance of charging documents Nos. 7100823, 7100826 and 7100827. Respondent received a 

total of 973 charging documents based on 762 inspection days in the 24 months immediately 

preceding the issuance of Order No. 7100548. There is no dispute that Respondent demonstrated 

good faith in obtaining compliance after the issuance of the charging documents at issue herein. 

Respondent does not contend that even the proposed penalties would affect its ability to continue 

in·business. The.negligence and gravity of the violations at issue have .been discussed herein. 

ORDER· 

.Order Numbers 7100826, 7100827 and 7100548 are .affirmed.as written with civil peaalties 

of -$60,000.00, $20;300.00, and $7 ,000.00. respectively. · Citation Number 7100823 ,is": hereby . 

modified to: delete· the "significant and substantial" .findings. but is .otherwise affirmed with a.civil 

~;::;d~~~~OO. The noted penalties, totalmg $87,600.00, sbal~i days of the date 

fr.tty Meli~ \ 

Distribution: 

Adminis~=ve La:~_udge 202-434-9977 

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

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

Rebecca Oblak, Esq., Bowles, Rice, McDavid Graff & Love, LLP, 7000 Hampton Center, 

Suite K, Morgantown, WV 26505 

/lb 

31FMSHRC1409 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

DENVER, CO 80202·2500 

303-844-5267 /FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitionei: 

v. 

BEYLUND CONSTRUCTION, INC., 

Respondent 

November 23, 2009 

DECISION 

CNIL PENALTY PROCEEDING 

Docket No. CENT 2008-721-M 

A.C. No. 32-00837-159178-01 

Docket No. CENT 2008-722-M 

A.C. No. 32-00837-159178-02 

Mine: Crusher 

Appearances: Ronald Goldade, Conference and Litigation Representative, U.S. Dept. of Labor, 

. Before: . 

Denver, Colorado on behalf of Petitioner. · 

. . · .. Steve B,~ylund, President, }:3eylund Constru~tion In~ .• 

Bowman, North Dakota on behalf of Respondent. 

Judge Mi:ller, . 

' ~ .. ; . . . ~ . .' 

·.. . .. ~ These :eases are before me. on petitions fi;>r assessment of civil penalty filed. by ~he . . . , 

Secretary of Labor ("Secretary''), Mine Safety and Health Administration ("MSHA") pursuant to . 

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

"Act"), charging Beylund Construction, Inc. ("Beylund'') with a total of 18 violations of 

mandatory standards and proposing penalties totaling $4,059 for those violations. The general 

issue before me is whether Beylund violated the cited standards, and if so, what is the appropriate 

civil penalty to assess in accordance with section 1 lO(i) of the Act. 

Beylund operates a scoria pit and crusher at its location in Ward County, North Dakota. 

The parties submitted signed joint stipulations in which they agreed that, among other things, the 

operation is a "mine" as defined by the Act, that the mine affects interstate commerce, that all 

persons working at the crusher are "miners" within the meaning of the Act, and that the 

Commission has jurisdiction to hear this case. 

Prior to the hearing, the parties initiated a conference call with the Court. Mr. Steve 

Beylund represented Beylund Construction, and the Secretary was represented by a Conference 

and Litigation Representative ("CLR"). Mr. Beylund explained during the call that he preferred 

for the Secretary to put on her case without him present, and suggested that he show up later for 

31FMSHRC1410 
·.--1 

an hour to explain ·his side. He further explained that he didn't have a quarrel with the citations 

that were issued, but wanted his day in ~ourt to protest the fact that MSHA was able to come 

onto his property over his objection. I explained the purpose of the hearing to Mr. Beylund and 

instructed him to bring any documents or photographs that he believed would help explain his 

position, including any financial documents if he thought that his ability to pay the civil penalties 

was an issue. 

At the outset of.the hearing, Mr. Beylund again expressed his position that he had no real 

issue with the violations as issued by the MSHA inspector. The parties signed and submitted a 

stipulation that included provisions admitting that each violation occurred as set forth in the 

citation. (Tr. 8, Ex. 27). When questioned, Mr. Beylund was unclear about what he had signed 

and about what he intended to explain to the Court. Therefore, it was determined that the 

Secretary,;s witness, MSHA inspector Shane Julien, would testifya8 to each violation and Mr. ' 

Beylund would then have the opportunity to ask questions and respond. During the course of the 

hearing, Mr. Beylund once again stated that he admitted the violations and did not want to 

proceed through each of the 18 citations that were issued, and instead preferred to use his time to 

voice his dissatisfaction with MSHA. (Tr. 76-77). 

·Findings of Fact J ;.-i ... ; .' •. , : ; ~ ... : ~ . ' ' 1; 

· · Beylurtd Construction, Inc. operates a scoria pit and crusher in remote North Dakota~ . In . ·· 

2001· an MSHA inspector discovered the Beylund pit and crusher operation after noticing a : .. ·.· 

nunibeN>fBeylund trucks haulmg material near Bowman, North Dakota.·. Because no~one was ·•·• 

· presentat the mine~:the inSpeetot left his business card on the ferice. (Tr. 19)~ In January 2008~- ·· 

Mr~. Beylund called the MSAA office iii Rapid City, South Dakota. The office 8upervisot;. . , , , 

· Inspector James Weisbeck, testified that he spoke with Mi-. Beylund on the phone and explained 

the MSHA requirements at that time. (Tr. 19-21). 

. Inspector Weisbeck informed Mr. Beylund of, among other things, what MSHA had to 

· offer to small operators, the purpose of MSHA, how inspections worked, and who was subject to 

the Mine Act. Further, Weisbeck offered to conduct a courtesy inspection at the mine and help 

Beylund come into compliance with MSHA regulations. Mr. Beylund refused the offer and 

replied that he wanted nothing ·to do with MSHA or its inspectors. (Tr. 22-24, 82). 

Several months after the conversation between Weisbeck and Beylund, MSHA Inspector 

Shane Julien returned to the Beylund scoria pit. The Beylund operation, as observed by the 

inspector, consists of a surface scoria pit, crusher plant, dozer, back hoe, excavator, haul trucks 

and other heavy equipment. (Tr. 42). On the day of Julien's visit, there were three employees 

working at the operation, including Mr. Beylund and his son. Julien testified that he "observed 

that the mine was loading trucks, doing maintenance, [and] cleaning up around the operation." 

(Tr. 32-33). 

31FMSHRC1411 
As inspector Julien and an MSHA inspector trainee were entering the mine site, they 

encountered a pickup truck carrying l\1r. 8eylund, his son, and another Beylund employee. (Tr. 

35, 43). The inspectors explained the MSHA inspection scheme and the right of the inspectors 

to enter the mine to conduct an inspection. Mr. Beylund was not welcoming. He raised his voice 

and told the inspectors that the mine had been sold and they could not conduct an inspection. 

Again, the inspector explained the Mine Act and the inspector's right to be on the property, but 

. Mr. Beylund denied them entry. (Tr. 36, 39). The inspectors left, traveled a short distance down 

the road, and stopped-to call the MSHA field office about the denial of entry. Shortly thereafter, 

Mr. Beylund approached the inspectors, acknowledged that his lawyer had informed him that 

MSHA could enter without a warrant, and told the inspectors they could return to the mine and 

inspect. (Tr. 36-37). 

The inspectors returned to the mine and conducted a regular inspection·of the pit andthe 

crusher operation. They took notes and photographs of each violation and explained them to Mr. 

Beylund during the close out conference. The inspectors observed the scoria pit, the crusher, an 

excavator, dozers, back hoe, and several trucks. It appeared that the mine crushed the scoria for 

several days at a time, and then loaded it on the haul trucks to be·delivered. The inspectors 

discovered that Mr. Beybl,tld, his son, and one other employee did the bulk of the work at the pit 

and the crusher. As a result of the inspection, sixteen citations and two orders were issued, 

including citations for failing to properly guard equipment, failure to file a mine identification, 

and failure to train any person who<worked at the l!lUJ.e .. (Jr .. 42). Subsequently MSHA issued 

eight 104(b) orders for failure to abate a number of the vfolatfons in a timely manner. At the. 

time of the-hear:iilg; one citation, number 6327959 citing a violation of 30 C.F.R-§..46.5(a) was.: '. ·. 

not abated: ::The citation was issued because "[ t]wo Iillriers, Steve Beylund ·and Michael Beylund, · 

:had not received the MSHA required.'24 hour new miner training within 90 days after beginnin'g. ··~ 

work at the mine.'' (Ex. 10).. ; • . ·: '" ~ ~ • ' : • '. <. :· 

As indicated above, Mr. Beylund had no quarrel with ·the violations as issued but used the . 

opportunity to tell the Court about his experience with MSHA and his difficulty with the 

inspection. At one point during his testimony Mr. Beylund acknowledged that he had operated 

the pit and the crusher for at least three years. At another point, he attributed a longer operational 

time frame for the pit and crusher. Mr. Beylund was not consistent in his testimony and I 

question his credibility. Since Mr. Beylund agreed that the violations as issued are correct, I will 

not address each citation. In.stead, I will briefly address Mr. Beylund's arguments regarding 

jurisdiction and the amount of penalty to be assessed for each violation. 

Conclusions of Law 

Mr. Beylund first argues that he didn't understand the law and therefore cannot be found 

"guilty" of these violations. He declared a number of times that he's not a criminal, and did 

nothing wrong. (Tr. 84). At the same time, Mr. Beylund argued that if the mine doesn't size the 

material ''then he is home free." In other words, on one hand, he said he didn't understand the 

31FMSHRC1412 
:·-·<: 

law, while on the other, he argues that if the crusher is not in operation, he does not have to 

comply with the law. (Tr. 85, 91). I fin,d th~t while Mr. Beylund may not have been familiar 

with all MSHA standards, he was certainly aware that he could be subject to MSHA regulation. 

His view is, ifMSHA does not catch him, then he is not subject to the law. Mr. Beylund cannot 

plead ignorance of the law while at the same time trying to avoid it, or develop his own theory 

about when he does and does not have to comply. Further, MSHA supervisor James Weisbeck 

had told Mr. Beylund at least six months prior to the inspection that Beylund was subject to 

MSHA regulation. If he-was not aware of the law for the three or more years while he was 

operating, he certainly became aware six months before the inspection when he was offered 

assistance to come into compliance. Beylund's response to the offer of assistance by Supervisor 

Weisbeck was that he didn't want anything to do with MSHA and that MSHA could "catch [him] 

if [it] can." (Tr. 19). 

Mr. Beylund made no effort to learn the law, but instead did everything he cuuld to avoid 

it. His lack of specific knowledge and his actions to avoid MSHA do not excuse the violations. 

First, as a general matter, the Mine Act is a strict liability statute. As such, the Mine Act assesses 

liability without regard to the individual operator's fault. International Union, UMW A v. 

FMSHRC, 840 F.2d 77, 83JD.C. Cir. 1988). However, fault maybe considered in setting the 

level of the civil penalties by considering whether the operator was negligent. 30 C.F.R. § 100.3. 

When a person operates a mine, it is his duty, at a minimum, to make an inquiry regarding his 

status-and the~ safety standards he is expectedto. meet. ·. ,,. __ 

.. '. :.::· ;·, .. ,. . ,· ,·., 

i. :: ·Be:Ylund' s ,next argument, that MSHA should not have the rightto enter the property .. 

without a· warrant,: also fails. {Tr. 88). It is well established thatMSHA can and must enter any 

mine to conductthe inspections required by the Act. The Act provides for such entry. 30.U.S.C; 

§ 813. Safety concerns and enforcement needs justify warrantless,inspections of mines. 

Marshall v. Texoline Company, 612 F.2d 935 (5th Cir.1980)£ While Mr. Beylund did not like 

the fact that MSHA had the right to enter his propert)' without a warrant, he agreed, after 

speaking to his attorney, that the law gives that right to the MSHA inspectors. He presented no 

legal reason for his argument regarding the warrantless search except to say that the government 

should not have such a right. 

The primary thrust ofBeylund's defense is that MSHA has no jurisdiction over the pit · 

and crusher operations, unless the plant is in operation at the time the inspectors arrive. {Tr. 88). 

Mr. Beylund maintains that if he operates the crusher, and MSHA does not catch him operating, 

then he cannot be issued any citations. Consequently, he was operating on Saturdays and 

Sundays in order to avoid an MSHA inspection. (Tr. 83). The Secretary argues that the 

extraction of scoria and operation of the crusher brings the facility within the Act's definition of 

a mine, and therefore the equipment, facilities, and employees are all subject to MSHA's 

jurisdiction. 

Beylund commenced crushing operations at this site at least three years ago. (Tr. 27). 

Beylund did not request a mine identification or seek to come into compliance with MSHA 

regulations at start up. The scoria pit operated for a number of years without MSHA notice and 

Mr. Beylund admits that he often operated on Saturdays and Sundays because he knew that 

31FMSHRC1413 
MSHA inspectors did not work on those days. Mr. Beylund urges the Court to vacate the 

citations that were issued because the mine was not sizing rock, and therefore was not operating 

at the time the inspectors arrived. He averred that MSHA would have to catch him operating 

and believed that until it did, it could not inspect the premises. He did not argue that his 

operation was outside ofMSHA jurisdiction, but simply that jurisdiction only applied if the pit 

and crusher were in operation. 

The legislative history of the Act makes clear that Congress intended that the Act's 

coverage provisions be interpreted broadly. The Senate Committee report emphasized that ''what 

is considered to be a mine and to be regulated under this Act [should] be given the broadest 

possible interpretation, and ... doubts [should] be resolved in favor of inclusion of a facility 

within the coverage of the Act." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate 

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

Health Act of 1977 at 602 (1978). The Commission and the courts have recognized this broad 

Congressional intent and have applied the Act's provisions to a wide variety of milling 

operations, including mining and crushing facilities similar to those at Beylund's site. Marshall 

v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3rd Cir. 1979) (facilities for processing of 

material dredged from a river bed were within the Act's definition of the term "coal or other 

mine"); W.J. Rokus Ind.;16 FMSHRC 704 (Apr. 1994) (equipment in garage used by both the 

operator's sand and gravel mine and asphalt plant is subject to the Mine Act's jurisdiction); 

Marshall v. Cedar La~ Sand and (Jrave/Co.,.1np.~,480 J'..Supp. 171 (E.D. Wisc. 1979) (pit from 

which sand and gravel are removed falls squarely wi9rln .the A~f ~ .defipition of a mine); . , . 

Marshall v, Gilliam, 462 F.Supp. 1~3 (E.D ... Mo. 1978). A ~all, family-run gravel business w:~, ., 

held to be a mine and MSHA' s jurisdiction to ~JlSPect and enforce fu.e Act was upheld as to a 

gravel pit, screening plant and equipment used~ or that had been used, in the operation. Jeppese~ .. 

Grave/,. 30 FMSHRC 324 (Apr. 2008) .(ALJ). , : . . , . . . 

. Sev~ral. aspects ofBeylund' s operatio~ ciearly rau' within the Act's definition of a mine. 

The removal of scoria from its natural deposits in the pit, crushing and sizing the rock, and 

transporting the rock, all constitute mining. (Tr.· 42, 90). Mr. Beylund, his son, and another 

employee extracted minerals from the pit, crushed the rock, and then loaded the rock onto the 

haul trucks. Beylund maintained and repaired mining equipment, including a dozer, back hoe 

and crusher. Whether specific items that were cited, such as gas cans or oxygen cylinders, were 

actually used in mining activities, the presence of those items in the area where miners worked 

mandated that Beylund comply with MSHA's regulations. W.J. Bokus Ind., 16 FMSHRC at 708-

709; Marshall v. Gilliam, 462 F.Supp. at 135. 

While the crusher is only operated on an "as needed" basis, it was evident that it had 

recently been operated and that the pile of scoria recently crushed was being loaded onto the 

trucks and transported. The site was being cleaned up from the most recent crushing operation. 

(Tr. 42). Equipment and facilities that are available for use by miners must be maintained in 

compliance with applicable safety standards, and are subject to inspections whether or not they 

are actually being used at the time. See, e.g., Ideal Basic Ind., Cement Div., 3 FMSHRC 843 

(Apr. 1981) (equipment located in a normal work area and capable of being used must be in 

compliance with safety standards). 

31FMSHRC1414 
I further find that additional factors buttress MSHA's assertion of jurisdiction. First, 

when resolving jurisdictional questions of this sort, the benefit of the doubt goes to the Secretary. 

As the Commission stated in Watkins Eng 'rs & Constructors, "Congress clearly intended that ... 

jurisdictional doubts be resolved in favor of coverage by the Mine Act. 24 FMSHRC at 675-676 

(citing S. Rep. No. 95-181, at 14 (1977) reprinted in Senate Subcomm. On Labor, Comm. On 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 

(1978)). 

A second related factor is that the courts and, by implication, the Commission and its 

judges, have been reluctant to second guess the Secretary when she makes choices involving 

. MSHA ~d OSHl.\. cov~rage~ She is the o~e :whose duty it is .~o ajIμiJrister the acts, and when, in . 

the cotirse of her administration, she makes irlfonned and rea8oneit junsdictional deteimmations, 

judicial decision makers have been wary of overruling her. See Watkins Eng 'rs & Constructors, 

24 FMSHRC at 672-673, 676. 

For all of these reasons, Beylund's challenge tO MSHAjurisdiction must fail. Finding no 

merit to any of the defenses-raised by Beylund, the citations are affirmed as issued . 

. Penal,& 

. J conclude that the penalties hutially pr()posecfby tll.~ Secretary woUld not adequately · 

. effectuate ''the det~t" PurP~se underlying tl;i~ Act\; petiajtf ai;s¢ssment ·scheme. Sellersburg 

Stone Co., 5 FMSHRC 287, 294 (Mar .. 1983),".a.ff'd, 736 F.Zd 1 i47_-(7th Cli. 1984). I reach this· 

'decisfoh based upon my conclusion that Beylrind did everything it could to 'avoid MSHA 

· -inspection, and for years operated on days Mr. Beylund felt MSHA would not find the crusher in · 

operation. In addition, Mr. Beylund suffered life-tbieatening injuries when he fell from the 

crusher and the same could have easily been the fate of other employees. Yet, he failed to abate 

the citations as required, and, as of the date of hearing, he and his son had not received the 

training necessary to operate the crusher and equipment safely. 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil penalties 

provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. 815(a) and 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires, that "[i]n assessing civil monetary penalties, the 

Commission [ ALJ] shall consider" six statutory penalty crite1ia: 

31FMSHRC1415 
[1] the operator's history of previous violations, [2] the appropriateness of such 

penalty to the size of the busines~ .. ofthe operator qh~ged, [3] whether the 

operator was negligent, [4] the effect on the operator's ability to continue in 

business, [5] the gravity of the violation, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 30 U.S.C. § 820{i). 

In keeping with this statutory requirement, the Commission has held that "findings of fact 

on the statutory penalty criteria must be made" by its judges. Sellersburg, 5 FMSHRC at 292. 

Once findings on the statutory criteria have been made, a judge's penalty assessment for a 

particular violation is an exercise of discretion, which is "bounded by proper consideration of the 

statutory criteria and th~deterrent purpose[s] .... [ot] the Act.. Id. at 294; Cantera Green, 22 

FMSHRC 616, 620 {May 2000). . . · · . · 

While I find no reason to question the degree of negligence and gravity assessed by the 

inspector and used by the Secretary in proposing the penalties in these two cases, I do, however, 

question Mr. Beylund's good faith abatement. Eight of the original eighteen violations were not 

abated within the time required by the citations. The most troublesome failure to abate concerns 

the training of employees at the mine. Training is so important to the safe operation of the mine 

and the serious injuries sustained by Beylund might have been avoided if he had been properly 

trained: The fact that a large number of citations were not abated in a timely manner~ that. most 

of the violations could have easily been abated within the time set, and that the training citation 

remains unabated, all weigh heavily on the detenninatioti of the increased penalties for those 

violations. . ;., 

. . ~ • • : 1 ( . : . ~ .• : . •• ; • : • ' • ~ : • . . • • 

Bey~und.i~ a small operator and' agreed that the,penalties:'as,,assessed would not interfere_,,,.·· 

with its ability to continue in business._ Since Beylund had noj'Qeeidnspected prior to June, .. · 

2008~ it has no history of violations. 'I find the following penaltie$ ·appropriate in this 

circumstance. · 

itation/ 

rder# 

327943 

tandard 

1.ll(a) 

6.14107(a) 

6.12030 

6.12028 

6.5(a) 

, 6.6(a) 

6.12008 

31FMSHRC1416 
5327946 56.14107A Failure to abate y $121 $140 

5327947 !56.12008 [<" ailure to abate N $112 $120 

5327950 56.14107A None N SlOO $100 

5327951 56.16006 ~ailure to abate N &112 $120 

5327952 . 56.4203 None N SIOO uoo 

5327953 56.14132A Failure to abate N &112 U20 

5327954 )6.18010 '.'Jone N 6100 SlOO 

5327955 ~7.31A None N 6100 6100 

6327957 50.30 None N $100 6100 

6327958 46.3 None·· N $100. 6100 

Total $4,059 4,1.77 

Consistent with this decision, it is ORDERED that Beylund Construction hie., pay a total 

civil penalty of $4, 177 for the 18 violations contained in these dockets. Such payment shall be 

made within 30 days of the date of this decision. 1 

.. 

... \ . 

· Distribution: 

Ron Goldade, Conference and Litigation Representative, U.S. Dept. of Labor, MSHA 

P.O. Box 256367, DFC, Denver, CO 80225-0367 (via Certified Mail) 

Steve Beylund, President, Beylund Construction Inc. 824 3n1 A venue, NE 

Bowman, ND 58623-4822 (via Certified Mail) 

1

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

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

31FMSHRC1417 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of LIGE WILLIAMSON 

Complainant 

v. 

CAM MINING, LLC, 

Respondent 

November 30, 2009 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2009-1428-D 

PIKE CD 2009-06 

Mine ID 15-18911 

Number 28 Mine 

AMENDME!tt OF ORDER OF TEMPORARY REINSTATEMENT 

Before: Judge Feldman 

•. : . An Order of Temporary Reinstatement was issued on October 2.6, 2009, granting an. · · · application for-temporary reinstatement filed by the Secretary, pursua:Q.tto s~tion 105(c.)(2) of 

the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.~.C. § 815( c )(2), against 

CAM Mining, LLC. (CAM Mining) on behalf of Lige Williamson. The initial decision on the 

Secretatf s application, following a September 2, 2009, evidentiaty hearing, detennined thatthe · 

secretary failed to satisfy her burden of demonstrating that the application foqempo:tary ; 

reinStatement was not frivolously brought. 31 FMSHRC _ (Sept. 30, 2009) (ALJ). The 

Secretary appealed the initial decision. The Commission then reversed and ordered the 

retroactive reinstatement of Williamson effective as of September 30, 2009, the date of the initial 

decision. 31 FMSHRC _,slip op. at 8 (Oct. 22, 2009). Consistent with the Commission's 

remand, the October 26, 2009, Order of Temporary Reinstatement granted Williamson's 

reinstatement relief effective September 30, 2009. 

The parties have now filed a joint motion to amend the Order of Temporary 

Reinstatement. The Secretary and CAM Mining have agreed to the method of computation that 

will determine Williamson's economic reinstatement relief as of September 30, 2009. · 

In view of the above, consistent with the terms of the parties' agreement, 

IT IS ORDERED THAT CAM Mining shall pay Lige Williamson his regular weekly rate of 

pay of $24.00 per hour for 40 hours in addition to payment for l 0 hours of overtime pay per 

week computed at the normal overtime compensation rate. The agreed total gross wages per 

week that Williamson shall be paid is $1,320.00 retroactive to September 30, 2009, minus 

deductions for truces and other items, if any, that were deducted during Williamson's 

31FMSHRC1418 
employment. The parties have agreed to the terms of the deductions for Williamson's health 

insurance premiums and the effective date of his health insurance coverage. In addition, all other 

benefits that Williamson wai; entitled to prior to his termination shall be restored effective 

September 30, 2009, including but not limited to his participation in CAM Mining's 40l(k) 

employee benefit program. 

Williamson'seconomic reinstatement shall not prejudice CAM Mining's right to contest 

Williamson's discrimination complaint that currently is beirig investigated by the Secretary. 

The Secretary should endeavor to complete, as soon as practicable, her investigation so that this 

matter may proceed to an evidentiary hearing on the merits. If the Secretary, upon investigation, 

finds that the provisions of section 105( c) have not been violated, she shall file a motion to 

vacate this Order of Temporary Reinstatement. Alternatively, CAM Mining may move to vacate 

this temporary reinstatement order if the Secretary declines to prosecute Williamson'~ complaint 

pursuant to section 105(c)(2) of the· Mine Act. Peter J. Phillips v. A&SConstruction Co., 

31 FMSHRC _,Docket No. West 1057-DM (Sept. 9, 2009). If the Secretary elects to file a 

discrimination complaint on behalf of Williamson pursuant to section 105( c )(2) of the Mine Act, 

IT IS ORDERED that Williamson's economic reinstatement shall remain in effect until the 

merits of the Secretary's 10S(c)(2) complaint becomes final. . ., 

Distribution: (Regular and Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Marie E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.Q: Box 273, 

Charleston, WV 25321 

/rps 

31FMSHRC1419 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 New Jersey· Avenue, NW, Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of MARK GRAY, 

.·Complainant 

v. 

Washington, DC 20001-2021 

December 2, 2009 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2009-1429-D 

BARB CD 2009-13 

NORTH FORK COAL CORPORATION, 

Respondent 

Mine ID 15-18340 

No.4Mine 

ORDER DISSOLVJNG ORDER OF E~~NQMlC TEMPORARY R,EINSTATEMENT·t .,: .. . . ORDER OF DIS~~SAL . . 

. . . . 

·.· On SepteI11ber ,8, 2009, the undersigned judg~iound that. the Secr~t~' s applicati<?n for. . 

the temporary reinstatement of Mark Gray; under Seetion l95(c)(2) of the Federal Mine $~fety 

and Health Act of 1977, 30 U.S.C. § 815 ( c )(2), was not frivolously brought and ordered his 

temporary reinstatement. Thereafter, on September 17, 2009, upon agreement of the parties, this 

judge ordered the economic temporary reinstatement of Mr. Gray. Respondent North Fork Coal 

Corporation subsequently requested that the economic temporary reinstatement order be 

terminated. 

The Secretary stated in her response, filed Nov. 23, 2009, that on Nov. 20, 2009, she sent 

written notification to Mr. Gray that, as a result of her investigation of his "Section 105(c)" 

complaint, she had decided not to file a "Section 105( c )(2)" complaint on his behalf. Under the 

circumstances, the Order of Economic Temporary Reinstatement must be dissolved and this 

temporary reinstatement proceeding must be dismissed. Secretary of Labor on Behalf of Peter J. 

Phillips v. A&S Construction Co., 30 FMSHRC 1119 (Nov. 208)(AU Barbour), affd Peter S. · 

Phillips v. A&S Construction Co., WEST 2009-1057-DM, 2009 WL 2971140 (FMSHRC Sept. 

9, 2009). 

31 FMSHRC 1420 
ORDER 

The Order of Temporary Economic Reinstatement, issued on September 17, 2009, is 

hereby dissolved, and this proceeding is dismissed. 

Gary Melick 

Administrative Law Judge 

(202) 434-9977 

· Distribution: (By Certified Maitand Facsimile ot,E;~atl); .. 

Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of 

· Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington,. VA22209-2247 .· ' . •) ~ .. 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg; KY 

41858 

Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA 

24210 

Mark Gray, P.O. Box 465, Grays Knob, KY 40829 

/eb 

31FMSHRC1421 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

December 3, 2009 

KNOX CREEK COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONTEST PROCEEDINGS 

DocketNo. VA2007-15-R 

Citation No. 7317341; 11/07 /2006 

Docket No. VA2007-16-R 

Order No. 7317342; 11/07 /2006 

Tiller No. 1 

Mine ID 44-06804 

CNIL PENALTY PROCEEDING 

Docket No. VA 2007-55 

A.C. No. 44-06804-119560 

. ~- . . . 

. KNOX CREEK COAL CORPORATION, . 

Respondent· 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH . 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ERNEST B. MATNEY, Employed by 

KNOX CREEK COAL CORP., 

Respondent 

;· 

. . 

TillerNo. 1 •; ·.' I • 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2008-215 

A.C. No. 44-06804-141359A 

Tiller No. 1 

DECISION 

Appearances: Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

Before: 

Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, 

for the Respondents. 

Judge Feldman 

31 FMSHRC 1422 
These consolidated civil penalty and contest proceedings concern a Petition for the 

Assessment of Civil Penalty filed pursuant to sectionlIO(a}ofthe Federal Mine Safety and 

Health Act of 1977, as amended ("the Act"), 30 U.S.C. § 820(a), by the Secretary of Labor 

(''the Secretary") against the respondent, Knox Creek Coal Company ("Knox Creek"). 

The petition seeks to impose a total civil penalty against Knox Creek of $8,300.00 for two 

violations of Part 75, 30 C.F.R. Part 75, of the Secretary's mandatory safety regulations 

governing undergrouncLcoal mines that the Secretary asserts are attributable to an unwarrantable 

failure. 1 The violations were cited as a result of a November 7, 2006, mine inspection. 

The proceedings also concern a personal liability action brought by the Secretary 

under section 110( c) of the Act, 30 U.S.C. § 820( c ), against Ernest B. Matney. The Secretary 

seeks to hold Matney personally liable for payment ofa total civil penalty of$2,700.00 

for the two violations in issue. Section 110( c) of the Act provides that a corporate agent 

"who knowingly authorized, ordered or carried out ... [a] violation" committed by a corporate 

operator may be subject to individual liability. 

These matters were_heard on June 2 through June 3, 2009, in Abingdon, Virginia. 

The parties' post-hearing briefs and replies are of record. 

I. Statement of the Case _,.: ···! . 

These consolidated·matters concern two citations issued as a con8eqtience ofMine Safety . 

and Health Administration ("MSHA") Inspector Donajd K. Phillips' November 7; 2006, · 

inspection of Knox Creek's Tiller No. 1 underground μtine facility. The citations are 104( d)(l) 

Citation No. 7317341 for failure to conduct ariadequafopresbift ~xamfuation in violation of 

30 C.F.R. § 75.360(a)(l), and, 104(d)(l) Ofder No. 7317342 for failure to protect personnel from· 

roof and/or rib falls in contravention of 30 C.F.R. § 75.202(a). The violations were designated as 

significant and substantial (S&S)2 and, as previOusly noted, the Secretary alleges the violations 

were the result of.Knox Creek's unwarrantable failure. At the hearing, Knox Creek stipulated to 

the fact of the occurrence of the violations and to the fact that the violations are properly 

characterized as S&S in nature. {Tr. 81-82, 86-87, 284-85). 

1 As a general matter, an unwarrantable failure occurs when a violation is caused by 

aggravated conduct rather than ordinary negligence. Emery Mining, 9 FMSHRC 1997, 2001 

(Dec. 1987). 

2 Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed 

to by the violation will result in an accident causing serious injury. Cement Division, National 

Gypsum, 3 FMSHRC 822, 825 (April 1981 ). 

31 FMSHRC 1423 
Thus, the only remaining issue concerning Knox Creek is whether the subject violations 

are attributable to an unwarrantable failure. As discussed below, the Secretary has demonstrated, 

by a preponderance of the evidence, that the violations are unwarrantable because: the cited roof 

conditions posed a significant hazard as they included a sheared roof bolt located in an 

intersection in close proximity to an area of bad roof; the adverse roof conditions existed for at 

least several shifts; the cited dangerous roof sloughage was extensive and obvious in nature; 

Knox Creek had made-no efforts to address the dangerous roof conditions; and Knox Creek was 

on notice that more thorough preshift examinations were required by its examiners by virtue of a 

previous citation that had been recently issued for an inadequate preshift examination. 

With respect to the 110( c) personal liability action brought against Ernest B. Matney, to 

prevail, the Secretary must show that Matney, as a foreman in·a position to protect employee 

safety, failed to act on the basis of information that gave him knowledge or reason .to know 

of the existence of a hazardous violation. Secy of Labor v. Richardson, 3 FMSHRC 8, 16 

(Jan. 1981), afj'd, 689 F.2d 632 (6th Cir. 1982). Although Matney's preshift examination 

was inadequate, in essence, the Secretary's 110( c) case against Matney is circumstantial in nature. 

Although denied by Kno~ Creek, the Secretary alleges that a crib had been installed to support 

the sheared roof bolt that was located in an intersection in close proximity to an area of bad roof. 

The Secretary asserts that the crib was either intentionally removed, or, accidentally knocked 

down. In any event, the Secretary maintains that the crib was not replaced intentionally 

because it interfered with the paths of scoops as they traveled through the: subject intersection 

: -from their battery recharging stations to and from the face.- Consequently, the Secretary believes, 

that Matney knew, or should have known, that a .. crib was required, and; that his failure to note 

the missing crib during his preshift examination is an aggravating factor that gives rise to 

Matney's personal 110( c) liability. 

As noted below, the inferences sought to be drawn by the Secretary do not demonstrate 

that it is more probable than not that a crib had been installed under the subject sheared roof bolt. 

Thus, the Secretary's evidence is inadequate to establish that Matney deliberately failed to note a 

hazardous roof condition that was known to him, or, that should have been known to him, during 

his preshift examination.3 As discussed herein, while Matney's preshift examination was 

inadequate, and a contributing factor in establishing Knox Creek's unwarrantable failure, 

the level ofMatney's negligence does not give rise to 1 lO(c) liability. Consequently, 

the Secretary has failed to show that Matney is liable because he "knowingly authorized, 

ordered or carried out " the subject violations. Accordingly, the case brought by the Secretary 

against Matney shall be dismissed. 

3 Personal liability under section 110( c) requires more than the typical "knew or should 

have known" standard that evidences ordinary negligence. As discussed infra, the "should have 

known standard" for personal liability is analogous to ignoring available facts that disclose the 

existence of a hazardous condition. See Roy Glen, 6 FMSHRC I 583, 1586 (July 1984 ). Here, 

the evidence is inadequate to demonstrate that Matney knew that a crib had been installed. 

31 FMSHRC 1424 
II. Findines of Fact 

Knox Creek, a subsidiary of Massey Energy Company, operates the Tiller No. 1 

underground coal mine located in Tazewell County, Virginia. Coal is extracted during 

two production shifts, and there is one maintenance shift. (Joint Stip. 6; Tr. 265-267).4 

The area of the mine that is the subject of these proceedings is the 005 MMU as it existed on 

November 7, 2006" The 005 MMU is also referred to as the No. 3 section. The area consists of 

the No. 3 and the No. 4 entries, and the crosscut between these entries in the general vicinity of 

the area located in an inby direction from survey stations 8050 to 8045. (App.1).5 In this area, 

Knox Creek utilized the room and pillar method. The relevant provisions of the roof control plan 

limited the entry widths to 20 feet. Roof bolts were required, four across between the ribs, on 

four footcenters. Each roof bolt is driven irito·the roof through a six inch washer-like bearing · 

plate that compresses a larger 10 to 12 inch "pizza pan" plate that supports the draw .rock in the 

surrounding area of the bolt. The pillar dimensions were 40 to.45 feet square, mined on 

60 to 65 feet centers. Thus, consistent with the approved roof control plan, the widths of the 

entries and crosscuts in the 005 MMU were 18 to 20 feet. The height of the crosscuts and entries 

was approximately six feet._ 

a. Initial Development in the Vicinity of 

Survey Stations 8045 :and 8050, 

: ~: 

· •· ·Knox Creek originally mined the area in the vicinity of survey stati~ns S045 and 8050 

approximately three to four months prior to the November 7 ~ 2006, inspeetion in issue. 

(Gov. Ex. 7; Tr. 235, 279-280, 397). When this area was initially mined, there was a rock fall in 

the No. 3 entry that required the areafo be dangered-off with.two rows ofcribs. (See App. I). 

hi addition, there was a sheared roof bolt at the inby edge of the intersection of the crosscut inby · 

survey station 8045 and the No. 3 entry; (See App. I). The sheared bolt was the second bolt from 

the left rib.6 Consequently, the sheared bolt was 8 feet from the left rib and 12 feet from the right 

rib. The damaged bolt was missing both the bearing plate and the "pizza pan" plate. Thus, the 

stripped bolt was not a source of any roof support. The area around the damaged roof bolt was 

rock dusted. Thus, the roof bolt apparently was damaged during the initial development of the 

area inby survey station 8045. After this area was mined and rock dusted, it remained idle for 

several months until November 2006, when battery chargers for scoops were moved into the area 

in preparation for further development inby. 

4 The parties' agreed upon stipulations include general joint stipulations and 

stipulations of fact. The joint stipulations are cited by number. The factual stipulations 

are cited by page number. (Joint Ex. 1 ). 

5 Government Exhibit 7 has been appended to this Decision as "Appendix I." 

6 The crosscut ribs are identified herein as "left" and"right" from the perspective of 

viewing the crosscut in an inby direction. (See App. I). 

31 FMSHRC 1425 
. ·.~·· .. ' 

b. Prior Notice Regarding Inadequate Preshift Exams - .., .. ,·· .-.,? .. :: .... · 

The parties have stipulated that a citation was issued to Knox Creek on October 31, 2006, 

for an alleged inadequate preshift examination at the 002 MMU. (Joint Stip. p. 6; Tr. 428). 

To terminate this citation, all of Knox Creek's examiners, including Ernest Matney, 

Christopher Stiltner, and Charles Riordan, the three 005 MMU section foreman who testified 

in these proceedings, were retrained on preshift examinations. The retraining occurred shortly 

after October 31, 2006, less than one week prior to the issuance of the November 7, 2006, 

citations in issue. (Tr. 428). 

c. Planning and Placement of Batteiy Chargers 

Approximately four days after the issuance of the October 31, 2006, citation for an 

alleged inadequate preshift.examination in the 002 MMU, the three 005 MMU section foremen 

began inspecting the intersection at the 8045 survey station in preparation for advancement inby. 

Night shift foreman Riordan testified that on Saturday, November 4, 2006, he, day shift 

foreman Stiltner, and maintenance shift foreman Matney, determined that the best locations to 

place two scoop battery chargers were in the crosscut between the No. 3 entry and the 

No. 4 track entry, and, in the No. 3 entry to the right of the intersection at survey station 8045. 

(App. I;, Tr. 222-23, 226). Riordan stated the tln:ee forem~ traveled the area several times before 

deciding on the placement of the cliargers because placement of the chargers was limited by_ the· 

lost spa.el!: iti:the vicinity ofthe rock fallin the No. 3 entry that had occu.rred when the area was 

initiatly tnined. (App. I; Tr. 224, 227..,28): All three. foreman testified that they did not 

notice the sheared bolt in the intersectfon although they traversed the area several times before · 

selecting the battery charger locations. (Tr .. 252, . .269,321, 3.87)., The two: battery chargers were '· .·. 

'situated it'r the No. 3 entry and in the crosscut outby the 8050 survey station on Sunday. evening, 

November5, 2006, and/-0r Monday morning, November 6, 2006. (Joint Stip. p. 7; Tr. 223). 

The scoops operating from these battery chargers are approximately 10 feet wide and 25 feet 

long. For the purposes of this decision the scoop and charging station in the No. 3 entry 

has been designated as No. l, and the scoop and charging station in the crosscut has been 

. designated as No. 2. (See App. I). 

d. Preshift and Onshift Examinations 

Prior to November 7. 2006 

After the battery chargers were placed in the No. 3 entry and crosscut, at least four 

preshift and onshift examinations of the 005 MMU were conducted. Matney conducted an 

onshift and preshift examination at 4: 13 a.m. on Monday, November 6, 2006. Stiltner conducted 

an onshift and preshift examination during the November 6th day shift following Matney's 

maintenance shift. Riordan conducted an onshift and preshift examination on the evening of 

November 6, 2006. Finally, in the early morning hours of November 7, 2006, at 4: 15 a.m., 

approximately five hours before Phillips issued the subject citations, Matney conducted his 

November 7, 2006, combined onshift and preshift examination that was completed 36 minutes 

31FMSHRC1426 
later at 4:51 a.m. None of the preshift or onshift examinations noted any of the hazardous 

roof conditions cited by Phillips in 104(d)(i) Order Ncc1·3 i 7342. 

e. Matney's Preshift Examination 

Matney testified that during the early morning hours of November 7, 2006, his crew 

was performing mainteHance on a continuous miner at the intersection at survey station 8630, 

which was approximately seven crosscuts inby the No. 1 entry. Matney stated that approximately 

38 loose crib blocks were used to prop up the mining machine. Specifically, approximately 

20 blocks were placed under the miner,· and approximately 18 blocks .were used to support the 

head of the miner. Matney testified he instructed his crew to place the loose cribs blocks 

between the cribs in the rock fall area in the No. 3 entry after they finished repairing the 

continuous miner. However, Matney testified that he did not know where the loose cribs blocks 

were ultimately placed. (Tr. 338-39). 

Matney began his preshift examination at 4: 15 a.m. Matney checked approximately 

eight headers. After returning to his crew at the continuous miner, Matney traveled down to the 

power center, then to the belt drive, and ultimately to the No. 1 charger in the No. 3 entry were he 

initialed the date board at 4:39 a.m. Matney stated that he observed the intersection in the 

vicinity of survey station 8045 from the backoftheNo. I scoop _that was parked next to the . 

' ··· No.~·t:charger~ ·:However, he did notwalk through the·. intersection.in the.vicinityofsurvey'.Stan9n 

8045,'orto the'rock fall area. The date board.at-the No. 1 charger was approximately45 feet. 

away :from the survey station at 8045 .. Matney did notnote.sloughage..and compacted material in . 

·.·the intersection of the crosscut and No. 3 entry obserVed by Phillips during his inspection several.· 

houts later. Day shift foreman Stiltner testified that.his-crew did nottak:e scoop No. 1 Qff · · 

· · the charger iii.-the No. 3 entry before Phillips inspected the area during the·morning of 

November 7, 2006. Consequently, there is reason to believe that the· compacted material 

on the mile floor immediately underneath the comer of the right rib existed prior to Matneys 

November 7, 2006, preshift examination because it apparently was· caused by contact with the 

No. 1 scoop. 

After signing the date board in the No. 3 entry Matney traveled down a crosscut parallel 

to the crosscut were the No. 2 scoop was located. Matney traveled to the belt drive, walked 

the track entry, and used a man.trip to travel down to the crosscut to the vicinity of the No. 2 

battery charger. Matney signed the date board located in the crosscut inby survey station 8050 

at 4:40 a.m., reflecting that the date board was signed one minute after the date board in the 

No. 3 entry was signed. 7 Matney testified that he observed the intersection at survey station 8045 

7 The accuracy of the times noted by Matney is suspect because it is difficult to imagine 

how Matney could traverse the area from the date board in the No. 3 entry to the date board in the 

crosscut in one minute. (App. I). In any event, Matney's preshift examination took 36 minutes, 

from 4: 15 a.m. until 4:51 a.m., to complete. 

31FMSHRC1427 
from the date board at the No. 2 battery charger. The No. 2 scoop was not parked next to the 

charger during Matney's preshift examination. Rather, it was located near the disabled 

continuous miner in the intersection at survey station 8630. 

Similar to his inspection of the roof conditions with cap light from the first date board 

in the No. 3 entry, Matney testified that he relied on cap light to view the 8045 intersection 

from the second date board located in the crosscut. The only reference to roof conditions in 

Matney's written November 7, 2006, preshift examination report was the remark "top shaggy." 

(Gov. Ex. 10 -10). Matney testified that he did not observe any of the adverse roof conditions 

that were subsequently observed by Phillips five hours later at 10:00 a.m. 

·_,... :·1 f. Phillip's November·?. 2006, Jns»ection 

i. Conditions at Track Entzy Near 

Survey Station 8050 

On the morning of November 7, 2006, at approximately 10:00 a~m., Phillips traveled the 

track entry where he noted an area of approximately 6 to 12 inches that had sloughed off of the . 

inby rib at the intersection of the crosscut and track entry. (App. I, ~,~Area F"). Phillips 

determined that the distances from the rib of the fiisHwo roof bolts adjacent to this sloughed off 

area were 60•mches ·and 54 inches,. respectively.. The approved ·roof control plan required the . · · 

Jitstro-w of roof bolts tobe·no more than 48 inches from·the rib~ ·Phillips;also obsel"Ved roof · > 

cracks· and Ioose .roof material in this area: .. Phillips' concern was ·heightened because this was an .. 

area wherepersonnelexited from the mantrip. . . t 

ii. Conditions at the No.:J·Entry Near·' 

Survey Station 8045 

After inspecting the sloughed rib near survey station No. 8050, Phillips traveled the 

crosscut inby to survey station No. 8045 where he observed roof cracks containing rock 

dust. Phillips checked a test hole in the vicinity of 8045 and found separation of 

approximately 49 inches. (App. I, "Area D"). In addition to separations in the roof, Phillips 

observed an old rock fall area in the No. 3 entry outby its intersection with the crosscut that was 

dangered-off and supported by two rows of cribs. Phillips observed that, in the first row of cribs, 

the three lowest timbers in the crib nearest the inby rib were dislodged, apparently as a result 

of having been struck by the No. 1 scoop as it turned right inby into the crosscut from the 

No. 3 entry. (App. I, "Area A"). The dislodged comer crib was particularly hazardous in view of 

its location, in a dangered-off area, near the intersection of the crosscut and the No. 3 entry. 

31FMSHRC1428 
iii. Sheared Roof Bolt in lnby Intersection 

ofCrosscutand No. 3 Entry ' 

At the inby end of the intersection of the crosscut and No. 3 entry Phillips observed that 

the second roof bolt, located 8 feet from the left rib and 12 feet from the right rib, had been 

sheared off. (App. I, "Area B"). The severed bolt was covered with rock dust. The bearing plate 

and "pizza pan" used to-support the draw rock were missing. Phillips testified that he observed 

marks that were brownish in color near the sheared bolt. (Tr. 119). Phillips believed the brown 

marks were beyond the area where the "pizza pan" would have been located. (Tr. 166). 

Phillips surmised the marks were made by a wooden wedge that was used to tighten a crib 

to the roof that had been installed as a substitute for the damaged roof bolt. Throughout these 

proceedings, Knox Creek has maintained that a crib had never been installed under this damaged 

roof bolt. (Tr. 293-96). · 

Phillips also noted approximately 30 loose crib blocks lying on the mine floor 

along the crosscut's left rib inby its intersection with the No. 3 entry. (App. I, "Area B"). 

The dimensions of a crib block are 6 inches in depth and 3 feet in width. (Tr. 120). 

The stacking of four crib blocks creates approximately one foot of crib height crib. (Tr. 121 ). 

Consequently, it would require approximately 24 crib blocks. to construct a crib that was six feet 

high:' Because·ofthe brown roof marks he had observedf~Phillips '.Concluded that the 109se crib 

blocks lying along the crosscut rib were the dismantled remains ofa·crib that had been installed 

to support1theroof area surrounding the sheared bolt. {Tr. 122; 167): .... 

As previously noted, the sheared bolt was focated 8: feet from the left rib of the crosscut, 

. If a crib that was 3 feet wide had been installed,, it would result in approximately 1 OYi feet of· . 

. clearance between the right rib and the end of the crib: The.presence of the crib would preclude; 

· the scoops, that are 10 feet wide, from traveling through the intersection of the crosscut and the 

No. 3 entry to the face. Moreover, the scoops' access to the charging stations from the face could 

only be accomplished through the crosscut between the No. 2 and No. 3 entries. Access through 

the No. 4 entry was blocked because of the track. Access to the face through the No. 3 entry was 

blocked. Specifically, the inby portion of the No. 3 entry was blocked by No. 1 charger, 

and the outby portion of the No. 3 entry was dangered-off and blocked by cribs. Consequently, 

Phillips recognized Knox Creek had a motive to dismantle the crib, if it had been installed, to 

allow the scoops to travel from the face to and from their battery chargers. {Tr. 122, 127). 

. As noted, throughout these proceedings, Knox Creek has maintained that a crib had never 

been installed under this damaged roof bolt. (Tr. 293-96). In this regard, Matney testified that 

there was no crib installed under the damaged bolt at the time of his presbift examination during 

the early morning hours of November 71

h. (Tr. 467). Consistent with Matney's testimony, 

night shift foreman Riordan, day shift foreman Stiltner, and maintenance superintendent 

Steve Addison testified they had never seen a crib supporting the roof in the area of the 

31FMSHRC1429 
damaged bolt. (Tr. 252, 306-307, 321, 520). Moreover, as previously noted, the existence 

of the damaged roof bolt was repeatedly oV'edooked dunng' at least four preshift and 

onshift examinations conducted by Matney, Riordan and Stiltner that preceded Phillips' 

November 7, 2006, inspection. 

To contradict Phillips' speculation that the loose crib blocks were the remnants of a 

dismantled crib, as previously discussed, Matney testified that the crib blocks located 

along the left rib were ilsed to prop-up and repair a continuous mining machine that was 

located near survey station 8630 during the November 7, 2006, maintenance shift. (Tr. 339). 

After maintenance of the continuous miner was preformed, Matney stated he directed miners 

Dave Bullion and Aaron Pennington to place the crib blocks in the dangered-off area of the 

· No~· 3 entry so· that they would not be run over· by the scoops as they traveled to and from the 

battery chargers. Matney testified that despite his instructions, the crib blocks apparently were 

placed along the left rib of the crosscut inby the No. 3 entry. With respect to roof marks, 

although Addision did not recall seeing any marks, he speculated that the missing "pizza pan" 

could have caused the roof marks described by Phillips. (Tr. 504). 

·"' ., ·-: 

iv. Sloughed-Off and Compacted Material 

at the Right Rib of the Crosscut ; i' 

.. , · · Phillips_: observed the.inby comer of the right rib of the crosscμt in the intersection of the, 

N-0. 3 entry had sloughed· offcausing'.the fjrst row of roofboltSto be 61~ 58~· and 64 inches from::· 

the rib in violation of the approved roof control plan that required the distance from rib to bolts . 

· to be rio more than 48 inches. (App. l, "Area C'). Phillips also observed that the sloughed 

--material had :been compacted on the floor reflecting thaHhe material had been run over· by 1he: : ' 

No. l scoop as ittumed the comer frOm the'. No. 3 entry mto the· crossci.lt.: Since there.were four. 

by four pallets of cinder blocks on the floor adjacentto the outby rib'in the No. 3 entry, Phillips 

. concluded that the No. 1 scoop would have had to hug the inby rib as the scoop approached the 

battery charger. (App. 1, "Area D"). This would expose the operator compartment of the scoop, 

which is located on the right hand side, to the comer of the rib that was compromised. 

As noted, day shift foreman Stiltner testified that his crew did not remove the No. 1 scoop from 

its charger prior to Phillips' inspection. Consequently, as previously discussed, the damaged rib 

and compacted material on the mine floor apparently existed at the time ofMatney's preshift 

examination that occurred before Stiltner's day shift operations. (Tr. 480-483). 

v. Sheared Bolt Near the No. 2 Battezy Charger 

Standing at the date board in the crosscut inby survey station 8050, Phillips observed a 

sheared roof bolt that was located over an outby comer of the No. 2 battery charger. The sheared 

bolt was four feet from the right rib. (App. 1, "Area E"). The charger receptacle was lying on the 

charger and had not yet been plugged into the No. 2 battery. Phillips was concerned that a miner 

would be exposed to the sheared bolt area when he attempted to attach the No. 2 battery 

to the scoop. 

31FMSHRC1430 
vi. Sloughed Right Rib Area Adjacent to 

No. 2 Charger 

Phillips also observed sloughage of the right rib in the area that was adjacent to the 

No. 2 charger. He determined the distance from the sheared bolt to the deteriorated rib was 

seven feet, indicating that three feet had fallen off of the rib. Riordan and Stiltner testified that 

they never observed-thi& deteriorated rib condition during their preshift and onshift examinations. 

(Tr. 232-34, 319). 

g. Citations Issued to Knox Creek 

;·· As a re8ult of Phillips' observations of the roof conditions noted above, and the fact that 

these conditions were not disclosed during the preshift examination as hazardous conditions 

requiring remedial action, Phillips issued 104( d)(l) Citation No. 7317341 for failure to 

conduct an adequate preshift examination in violation of30 C.F.R. § 75.360(a)(l), and, 

104( d)(l) Order No. 7317342 for failure to protect personnel from roof and/or rib falls in 

contravention of30 C.F.R._§ 75.202(a). The violations were designated as S&S and they were 

attributable to Knox Creek's unwarrantable failure. The Secretary seeks to impose a total civil 

penalty of $8,300.00 for these alleged violations. 

· Ii; Pers0nal llO(c)Liability of Matney : .• • ' I, '~ ~ .. 

' ··,. , : . ~'. . . ~ ... 

The Secretary also seeks to impose personal liability of$2,700.00 against 

Ernest B. Matney under section 110( c) of the Act.for the two violations. in issue. 

Section llO(c) provides that a corporate.agent."who kn:owinglyauthorized,1orderedor ca,rried,out, · 

... [a] violation'' committed by a mine: operator may be subject to individual liability. . ... 

III. Further Findines and Conclusions 

a. Knox Creek 

The mandatory safety standards in issue are 30 C.F.R. §§ 75.202(a) and 75.360(a)(l). 

104(d)(l) Order No. 7317342 cites a violation of Section 75.202(a). This mandatory safety 

regulation provides: 

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 . 

. 31FMSHRC1431 
104(d)(l) Citation No. 7317341 cites a violation of Section 75.360(a)(l). This mandatory 

safety regulation provides, in pertinent part: 

... a certified person designated by the operator must make a preshift examination 

within 3 hours preceding the beginning of any 8-hour interval during which any 

person is scheduled to work or travel underground. No person other than certified 

examiners may enter or remain in any underground area unless a preshift 

examination has been completed for the established 8-hour interval. The operator 

must establish 8-hour intervals of time subject to the required preshift 

examinations. 

As-noted, at thehearin:g, Knox Creek stipulated to the fact of the occurrence of the 

violations, and, to the fact that the violations are properly characterized as S&S in nature. 

(Tr. 81-82, 86-87, 284-85). Thus, the remaining issue with respect to Knox Creek is whether the 

violations are attributable to an unwarrantable failure. 

The elements of u,nwarrantable conduct are well settled. The Commission has 

determined that unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such 

conduct as "reckless disregard," "intentional misconduct," "indifference," or a. "serious. lack of 

reasonable care:" Id. at2003-04; Rochester &Pitt~burgh Coal.Co., :13FMSHRC189,J93-194 · 

(Feb.1991); see also Buck Creek Coal, 52 F.3d atJ35•36 (approving the Cotnmission's . 

cunwarrantable failure test). 

··'·.· ' 

·': . · ·- . · The C<>mmission examines various factors in determining whether a violationis 

-Unwarrantable, including the magnitude ofa violative condition, the length of time that it has 

existed, whether the violation is obvious, whether the. violation poses a high degree of danger, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

and the operator's compliance efforts made prior to the issuance of the citation or order. 

Enlow Fork Mining Co., 19 FMSHRC at 11-12, 17; Mullins & Sons Coal Co., 16 FMSHRC 192, 

195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(August1992); Quin/and Coals, 

Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603(July1984). 

It is clear that virtually all of the elements of an unwarrantable failure are manifest in this 

case. With respect to the magnitude of the violations, the hazardous roof conditions, which were 

repeatedly overlooked by preshift and onshift examiners, included: two sheared roof bolts, one of 

which was located in an intersection near a dangered-off area; several areas of rib sloughage that 

resulted in exceeding the maximum 48 inch distance allowed between ribs and roof bolts; and a 

dislodged crib lo_cated near an intersection in an area of bad roof. There is no evidence that these 

hazardous roof conditions did not exist during Matney's November 7, 2006, preshift examination 

as these conditions were observed by Phillips shortly thereafter. 

31FMSHRC1432 
Regarding the length of time the subject violations existed, the area in the vicinity 

of survey stations 8050 and 8045 was illitially mined duiihg the summer of 2006. The sheared 

roof bolt in the intersection of the crosscut and the No. 3 entry apparently occurred during the 

initial mining cycle by virtue of the fact that the severed shaft of the roof bolt was covered with 

rock dust. Knox Creek has admitted that a crib had not been installed to supplement this 

damaged roof bolt between the time it was initially damaged and the time it was observed by 

Phillips in November 2006, a period of approximately four months. (Tr. 293-96). In addition, 

there was another unsupported sheared roof bolt located almost directly over the No. 2 battery 

charger inby survey station 8050. This damaged roof bolt apparently also existed since the area 

was initially mined. 

The evidence also reflects that the sloughed material located along the comer of the right 

rib at the inby intersection of the crosscut in the No. 3 entry, compacted by the No. I.scoop, 

existed for more than one shift because the No. 1 scoop remained on the battery charger during 

the shift preceding Matney's maintenance shift. Consequently, it is apparent that the hazardous 

roof conditions went unattended for a considerable period of time, and they were repeatedly 

overlooked during the co~e of numerous preshift and onshift examinations. 

Moreover, the cited roof conditions, repeatedly overlooked by Knox Creek examiners, 

were readily: apparent. The roof sloughage lengthened the,permissible distance between the first. 

'rbw ofroofbolts and the rib. The sheared roof,bolt fa:th:e.intersection of the crosscutin the , . , ; ·. · 

Noi .3 entry was in a heavily traveled· area. In· addition, it was m the vicinity ofa dangered.,off . 

area thatrequired supplemental crib support. Finally, the No. 2 battery charger was positioned· 

almost directly under another sheared roof bolt exposing miners .to a hazardous roof conditioil:.> · ; 

, . · ' The '.degree of danger is the most damaging aspect of this-unwarrantable failure analysis. ·· : 

The· location of the unremedied severed bolt, in the intersection in the No. 3 entry and crosscut, 

in proximity to a roof fall area, alone, warrants an unwarrantable failure finding. The sheared 

bolt was located in the crosscut at the inby edge of the intersection, eight feet from the 

corner of the left rib. This roof bolt served no purpose given the missing retention plate and 

"pizza pan" plate. Consequently, there was only one functioning roof bolt between the left rib · 

and the third roof bolt located 12 feet from the left rib, in anintersection that was adjacent to a 

dangered-off area where a roof fall had already occurred. In addition, miners using the No. 2 

battery charger were also exposed to another damaged roof bolt that was located above. 

With respect to whether Knox Creek was on notice that greater compliance efforts were 

necessary, it is significant that Knox Creek was cited for inadequate preshift examinations in its 

002 MMU on October 31, 2006, only one week before Phillips issued the citations in issue. 

Moreover, to abate the October 31st citations, Knox Creek examiners Matney, Stiltner and 

Riordan, the examiners that were responsible for examining the 005 MMU area in issue, 

were retrained in the proper methods of conducting pres hi ft examinations. In this regard, 

repeated similar violations are relevant to an unwarrantable failure determination to the extent 

that they serve to put an operator on notice that greater efforts are necessary for compliance with 

a safety standard. Peabody, 14 FMSHRC at 1263-64. 

31 FMSHRC 1433 
Finally, there is no evidence that Knox Creek took any action to remedy the hazardous 

roof conditions prior to Phillips' Noveiltber 7, 2006, irispection. The long standing nature of 

these readily apparent hazardous roof conditions, that were repeatedly overlooked during the 

numerous onshift and preshift examinations preceding Phillips' inspection provide an 

adequate basis for concluding that the roof condition and preshift examination violations 

of sections 75.202(a) and 75.360(a)(l), respectively, are attributable to Knox Creek's 

unwarrantable failur~ Accordingly, 104(d)(l) Order No. 7317342 and l04(d)(l) Citation 

No. 7317341 shall be affirmed. 

b. Knox Creek's Civil Liability 

The statiitory civil penalty criteria are·set: forth in section l lO(i) of the Act, 

30 U.S.C. § 820(i). In determining the appropriate civil penalty to be assessed, section 11 O(i) 

provides, in pertinent part: 

... the Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and the demonstrated good faith 

of tlie pe:rson charged in attempting to achieve rapid compliance after notification. 

of a violation. ' ' '. ' . · ... : . ,, 

As noted; the Secretary seeks to iinpose a total civil penalty of $8,300.00 consisting of _, .. 

. $4;600.00'.for Order No. 7317342 and $3,700.00 for Citation ·No .. 7317341 ... The parties have : 

stipulated that the continuing mining operations of Knox Creek Coal Company, a subsidiary of· .. 

Massey Energy -Company, will not.be affeCted:by the civil.penalty proposed by the Secretary; . ; .. 

As charged by the Secretary, the violations are attributable to at least a high degree of negligence. 

The violations were abated in a timely manner,. and, there are no other aggravating or mitigating 

circumstances that warrant disturbing the total $8,300.00 civil penalty proposed by the Secretary 

for the two violations in issue. Consequently, the civil penalty initially proposed by the Secretary 

shall be assessed. 

8 It is unclear whether 104( d)(l) Citation No. 7317341 that states that "an adequate preshift examination has not been conducted for the active 005 MMU" refers to a single pre-shift 

examination, or, a series of pre-shift examinations. I construe this citation to be applicable to a 

series of inadequate pre-shift examinations because all foreman/examiners were required to 

complete training on proper examination procedures to terminate the citation. (Gov. Ex 3). 

31 FMSHRC 1434 
·'. ,-.· 

c. Personal Liability of Matney 

The Secretary seeks to assign personal liability to Matney for the two violations in issue. 

Section 110( c) of the Mine Act provides: 

Whenever a corporate operator violates a mandatory health or safety standard ... 

any ... agent of-Such corporation who knowingly authorized, ordered or carried 

out such violation ... shall be subject to the same civil penalties [as the corporate 

operator] .... 

The preshift examination "is of fundamental importance in assuring a safe working 

environment underground." Enlow Fork, 19-FMSHRC 5~ 15 (Jan. 1997) (quoting Buck Creek 

Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)). Thus, a mine operator is required to perfonn preshift 

examinations to identify hazardous conditions. Id. at 14. (citing 30 C.F .R. § 7 5 .360(b) ). 

However, not every inadequate preshift examination that is attributable to a mine operator's 

unwarrantable failure provides a basis for personal liability of the preshift examiner under 

section 110( c ). In other words, a mine operator's culpability for an unwarrantable failure based 

on an inadequate preshift examination evidencing more than ordinary negligence may be 

insufficient to demonstrate that its agent "knowingly" violated the cited regulation requiring 

adequate preshi:ft exams. _- ' -,' 

, The indicia necessary to support a finding that a corporate agentacted ''knowingly" 

under section 110( c) .is difficult to articulate. As a general-proposjtion, a "knowing" 

violation under section l l 0( c) involves aggravated conduct rather than ordinary negligence. __ 

BethenergyMines, Inc.; 14 FMSHRC 1232, 1245 (Aug. 1992). However, the analysis does n9t -

stop there; -While it is true that an urlwarrantable failUr.e also .involves more than ordinary 

negligence, there are significant conceptual differences between unwarrantable conduct and 

''knowingly" violating a mandatory safety standard. Individuals charged with 11 O( c) liability 

should be judged based on their individual knowledge and actions not on the collective actions 

or inferred knowledge of the mine operator. Thus, an agent of a corporate mine operator is 

subject to 110( c) liability if he has knowledge of a hazardous condition but he deliberately 

fails to act. Id. 

The operative tenn "knowingly" has been extensively discussed by the Commission and 

the Court. The Commission discussed the criteria for determining if there is personal liability 

under section 110( c) of the Mine Act in Lefarge Construction Materials, 20 FMSHRC 1140 

(Oct. 1998). The Commission stated: 

The proper inquiry for detennining liability under section 110( c) is whether 

the corporate agent knew or had reason to know of a violative condition. 

Kenny Richardson, JFMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d 

(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal 

Mining Co. v. FMSHRC, 108 F.3d 358,362-64 (D.C. Cir. 1997). To establish 

31 FMSHRC 1435 
section 110( c) liability, the Secretary must prove only that an individual 

knowingly aCted, not that the individual knoWingly violated the law. 

Warren Steen Constr. Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United 

States v. Int'! Minerals & Chem. Corp., 402 U.S. 558 (1971)). An individual acts 

knowingly where he is "in a position to protect employee safety and health [and] 

fails to act on the basis of irif ormation that gives him knowledge or reason to 

know of the e:&istence of a violative condition." Kenny Richardson, FMSHRC 

at 16 

20 FMSHRC at 1148 (emphasis added). Similarly, in Roy Glen, the Commission stated: 

Accordingly, we hold that a corporate agent in :a position·toprotect employee· 

safety and health has acted "knowingly" in violation of section 110( c) when, 

based upon facts available to him, he either knew or had reason to know that a 

violative condition or conduct would occur, but failed to take appropriate 

preventative steps. 

6 FMSHRC at 1586 (emphasis added). 

In Freeman United Coal Mining Co. v. FMSHRC, 108 F;Jd;· (D.C. Cir. 1997), the Court 

addressed the issue ofindividual knowledge: 

· ... the meaning of "knowledge" depends upon context and that a continuum of 

meaning that stretches from "constructiv~ knowledge" to ''actual knowledge" with 

various gradations between .... under the Corninodity Exchange Act, [an] 

·individual "knowingly"· induced a vfolation if:he had ~'actual or. constructive 

knowledge of the core activities that constitute the violation at issue and 

allowed them to continue." 

108 F.3d at 363 (emphasis added) citing JCC v. CFTC, 63 F.3d 1557, 1567-68 (11th Cir. 1995). 

As noted, preshift examiners Matney, Stiltner and Riordan repeatedly failed to note the 

cited hazardous roof conditions during at least four shifts preceding Phillips' November 7, 2006, 

inspection. While these failures to perform adequate examinations, collectively, provide 

the basis for an unwarrantable failure, Matney must be judged on his individual conduct. 

Thus, the Secretary must prove Matney knew or should have known of a hazardous condition and 

failed to act. In other words, the Secretary must show that Matney knowingly ignored the hazard. 

Roy Glen, 6 FMSHRC at 1586 (ignoring a known hazard is a see-no-evil approach to mine safety 

that violates section l lO(c)). In this regard, the Secretary seeks to prove, through circumstantial 

evidence, that Matney knew, or should have known, that Knox Creek had installed, and 

intentionally removed, a crib that was supporting the sheared bolt in the intersection of the 

crosscut and the No. 3 entry. 

31 FMSHRC 1436 
::·:·. 

The Secretary has established that Knox Creek had a motive to remove the crib if 

it had been installed because there would'only have been approximately ten feet and six inches 

clearance between the crib and the right rib of the crosscut. Such a crib would have impeded the 

passage of the No. 1 and No. 2 scoops, that are ten feet wide, as they traveled to and from the 

battery chargers to the face. However, the Secretary's assertion that a crib had, in fact, been 

installed is not based on direct evidence. Rather, it is based on several inferences the Secretary 

seeks to draw from several collateral facts. 

The Secretary relies on approximately 30 six inch deep by three feet wide crib blocks 

that Phillips observed lying on the mine floor along left rib of the crosscut inby its intersection 

with the No. 3 entry to infer that a crib recently had been disassembled. Matney testified that 

the crib blocks had been used a8 a ramp to repair a continuous miner. 

The Secretary also relies on marks that were brownish in color that Phillips reportedly 

observed in close proximity to the sheared bolt to infer that a crib had been installed. Phillips has 

speculated that the marks are wedge marks that had been left by a crib. Although not conceding 

that marks existed, Knox Creek speculates that the roof marks could have been made when the 

"pizza pan" was secured to the roof by the bearing plate. The Secretary has not proffered any 

photographs in support of her belief that the marks were made by a crib. 

In determining the sufficiency of evidence, the Commission has held that "the substantial 

evidence standard may be met by reasonable inferences drawn from indirect evidence." · 

Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (MayJ984). Inferences·based on indirect 

·evidence are "inherently reasonable" if there is a "logical and.rational connection between the. 

evidentiary facts and the ultimate facttobe inferred." Id However,.ifl the instant case the·· . 

· alternative explanations offered by Knox Creek for the collateral facts concerning the roof marks 

and the presence of loose crib blocks are as reasonable as the Secretary's speculation. 

Significantly, the Secretary, in the citation and order in issue, attributes the exposure to 

hazardous roof conditions, and the inadequate preshi:ft examination, to high negligence rather 

than to a reckless or a conscious disregard of the need to reinstall a dismantled crib. Consistent· 

with the Secretary's high negligence designation, although Matney's preshi:ft examination, like the 

examinations of his colleagues, was inadequate and evidenced a high degree of negligence by 

virtue of the hazardous conditions that were overlooked, it does not constitute a "knowing" 

violation of the cited mandatory safety standards. 

While a crib may have been removed for the sake of expediency, in the final analysis, 

the Secretary bears the burden of proving, by a preponderance of the evidence, that a crib had, 

in fact, been installed. The Commission has noted that the preponderance of the evidence 

standard requires the trier of fact to believe the existence of a fact "is more probable than its 

nonexistence." RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) 

(citations omitted). On balance, the Secretary has failed to satisfy her burden of demonstrating 

that it was more probable than not that a crib had been installed. Consequently, the Secretary has 

31FMSHRC1437 
failed in her attempt to establish that Matney acted "knowingly" because he failed to act on the 

basis-of information that gave him knowledge, or reason to know, of the existence of hazardous 

roof conditions. Although Matney's 36 minute preshift examination was inadequate, in that 

hazardous roof conditions were overlooked, the evidence does not reflect that it was illusory, or 

otherwise so precursory, to support the conclusion that Matney "knowingly'' violated the subject 

mandatory safety standards. Accordingly, the citation and order issued against Matney shall be 

vacated. 

ORDER 

In view of the above, IT IS ORDERED that Knox Creek Coal Corporation's 

contests in Docket Nos. VA 2007-15-R and VA 2007-16-R ARE DISMISSED. 

IT· IS FURTHER ORDERED that l 04( d)(l) Citation No. 7317341 and 

104(d)(l) Order No. 7317342 in Docket No. VA2007-55 ARE AFFIRMED. 

IT IS FURTHER ORDERED that Knox Creek Coal Corporation shall pay, 

within 45 days of the date of this Decision, a total civil penalty of $8,300.00 in 

~atisfacti~n of 104(d)(l) Citation No. 7317341 and 104(d)(l) Order No. 7317342. 

Consistent with this Decision, the Secretary has failed to demonstrate that 

'Ernest B. Matney knowingly authorized, ordered or carried outviolations of sections 

-75.360(a)(l) and 75.202(a) of the mandatory.safety standards.' Consequently, 

IT IS ORDERED that the personal liability case in Docket No': VA.2008:..215 

IS DISMISSED. 

Distribution: (Certified Mail) 

~\0056 2 

Jerold Feldman 

Administrative Law Judge 

Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247 

Timothy W. Gresham, Esq., Penn, Stuart & Eskridge, 208 E. Main Street, 

P.O. 2288, Abingdon, VA24212 

/rps 

31FMSHRC1438 
APPENDIX 1 

31FMSHRC1439 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9?00 

Washington, D.C. 20001 

December 9, 2009 

SECRETARY OF LABOR, EMERGENCY RESPONSE PLAN 

MINE SAFETY AND HEALTH DISPUTE PROCEEDING 

ADMJNISTRATION (MSHA), 

Petitioner Docket No. PENN-2010-103-E 

Citation No. 7000435; 10/06/2009 

v. 

RS&W COAL COMPANY, INC., 

Respondent 

Mine ID 3·6-01818 

RS&W Drift Mine 

DECISION 

Appearances: Stephen Turow, Esq., Lynne Bowman Dunbar, Esq., U.S. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, on behalf of Petitioner; 

Cindy Rothermel, Randy Rothermel, RS & W Coal Company, Inc., 

Klingerst~Wji, Pemisylvania~ ·for Respondent. · · . . . . -~ . . ·. 

. . . 

Before: Judge Zielinski -:· .. 

This case is before :m.e on a Referral of an Emergency Response Plan Dispute by the· 

. Secretary of Labor pursuant to s~tion 3 l 6(b )(2)(G) of the Federal Mine Safety and Health Act of 

. 1977, 30 U.S.C. § 876(b)(2)(G).1 At issue is a citatiOn issued on November 6,2009, charging the 

1 Section 316(b)(2)(G) of the Act provides a mechanism for expeditiously resolving 

disputes between operators and the Secretary over the content of Emergency Response Plans. 

Plan dispute resolution 

(I) In general 

Any dispute between the Secretary and an operator with respect 

to the content of the operator's plan or any refusal by the Secretary 

to approve such a plan shall be resolved on an expedited basis. 

(ii) Disputes. 

In the event of a dispute or a refusal [by the Secretary to approve 

a provision of an ERP,] the Secretary shall issue a citation which 

shall be immediately referred to a Commission Administrative Law 

Judge. The Secretary and the operator shall submit all relevant 

material regarding the dispute to the Administrative Law Judge 

within 15 days of the date of the referral. The Administrative Law 

31FMSHRC1440 
Respondent, RS&W Coal Company, Inc., with a violation of the Act for failing to update its 

Emergency Response Plan (ERP) to provide for the inStallation of wireless communications and 

electronic tracking (C&T) systems at its mine, and failing to state sufficient reasons for not 

adopting such systems. A hearing was held in Pottsville, Pennsylvania on November 24, 2009, 

wherein the parties submitted all relevant material regarding the dispute.2 For the reasons set 

forth below, the citation is affirmed. 

Findings of Fact - Conclusions of Law 

The Statutory and Regulatory Backdrop 

. In response to a series of tragic accidents in which· underground coahninendost their 

lives, Congress enacted the Mine Improvement and New Emergency Response Act of 2006 

(MINER Act).3 The MINER Act amended section 316 of the Mine Safety and Health Act of 

1977, to require, inter a/ia, that each underground coal mine operator develop and adopt a 

response and preparedness plan, or ERP, and submit it to the Secretary for approval and periodic 

review. The MINER Act b_ecame effective on June 15, 2006, and the initial ERPs were to be 

adopted and submitted by August 14, 2006. The Act requires that ERPs include several 

provisions intended to erμtance the ability of trapped miners to survive an accident. 

'· The requirements for the installation cir post-accident wireless coinmunications and · 

electronic tracking syst~s are stated in section 316(b )(2)(F)(ii) of the Act: · · 

Post Accident Communications.-. . · · , 

. Not Jater than3 years attei- the"<fui~ of enactine~t.Q( th~· Mille 

Iniprovement and New Emergency Response Act of 2006, a plan 

shall, to be approved, provide for post accident communication . 

between underground and surface personnel via a wireless two-way 

medium, and provide for an electronic tracking system permitting 

Judge shall render his or her decision with respect to the plan 

content dispute within 15 days of the receipt of the submission. 

30 U.S.C. §876(b)(2)(G). 

2 Commission Procedural Rule 24 specifies that, ''The scope of [a hearing on an ERP 

dispute] is limited to the disputed plan provision ·or provisions." 29 CFR § 2700.24. Respondent 

has filed a Notice of Contest of the citation under section 105( d) of the Act. RS& W Coal 

Company, Inc., Docket No. PENN 2010-145-R. Challenges to the citation's special findings 

dealing with negligence and gravity, if any, can be litigated in that contest proceeding or in the 

course of any subsequent civil penalty proceeding. 

3 P.L. 109-236 (June 15, 2006). 

31FMSHRC1441 
surface personnel to determine the location of any persons trapped 

underground or set forth within the plari the reasons such 

provisions can not be adopted. Where such plan sets forth the 

reasons such provisions can not be adopted, the plan shall also set 

forth the operator's alternative means of compliance. Such 

alternative shall approximate, as closely as possible, the degree of 

functional utility and safety protection provided by the wireless 

two-wa:y medium and tracking system referred to in this subpart. 

30 u.s.c. § 876(b)(2)(F)(ii). 

The Problem - Technical Discussion 

Underground anthracite coal mines produce coal through "conventional methods," 

i.e., using explosives detonated by electric detonators. It has long been recognized that devices 

that emit radio frequency (RF) energy, such as wireless communications systems, can pose a 

hazard when used in proajmity to electric blasting circuits. The wires of a blasting circuit 

function like antennae, and RF induces an electric current in such circuits which could result in 

an unintended detonation. 4 

· ' Safety standards for underground.eoal.niines specify nmlierous requirements addressed to,. 

the safe handling of explosives. 30 C;F;R.. §§ 75.1300;; 1328. Those standards require that. 

blasting circuits be protected from sources of stray electric current, and recognize that stray 

electric current can be induced in blasting.circuits by n~arby elec.tric ppwered equipment, cables • 

or batteries. The Secretary's regulations·require;:that electric cables and equipment be 

· deenergized or removed to at least 50 feet from blasting·boreh'oles before th,e priming of 

explosives. § 75.1316(a)(l). Noteably, the regulations also actually require the introduction of 

electric current in blasting circuits in order to test for continuity and resistence prior to blasting. 5 

Section 75.1323(j) requires that: 

Immediately prior to firing, all blasting circuits shall be tested for 

continuity and resistence using a blasting galvanometer or other instrument 

specifically designed for testing blasting circuits. 

4 A 2001 publication by the Institute of Makers of Explosives (IME), Safety Library 

Publication No. 20 (SLP-20), entitled "Safety Guide for the Prevention of Radio Frequency 

Radiation Hazards in the use of Commercial Electric Detonators," notes that, ''To date there have 

been a few authenticated cases of a detonator being fired accidentally by RF pickup." Ex. P-13 at 

2. Reports of several incidents, most of which involve unintended detonations caused by RF in 

the last 20 years, were introduced by RS&W. Ex. R-3, R-4, R-5, R-6. 

5 Continuity and resistence testing assures that the blasting circuit is properly wired, and 

that all of the one-ohm resistence detonators have been included in the circuit. 

31FMSHRC1442 
Blasting galvanometers route electric current through the blasting circuit at an extremely 

low level that has been determined to pose no threat ofaC:tivating a detonator, and have been 

used safely in mines for many years. MSHA-approved blasting galvanometers are allowed to 

introduce electric currents of up to 50 milliamps (mA) and, under some circumstances, up to 

l 60mA. Not surprisingly, extensive testing has been done and studies undertaken to quantify the 

amount of electrical energy to which blasting circuits and detonators can be safely subjected. 

Studies by the U.S. Department of Interior's Bureau of Mines in 1973 and 1981, and the IME's 

SLP-20, published in 2001, have been referenced in this proceeding.6 The 50mA permissible 

limit is reflected in the Secretary's safety standards. Electric equipment and cables located at 

least 25 feet away from boreholes need not be deenergized or moved if "stray current tests 

conducted prior to priming the explosives detect stray currents of 0.05 ampere [50mA] or less 

through a I-ohm resistor." § 75.1316(a}(2). 

There are other generally recognized safe levels of electrical energy to which blasting 

circuits and detonators can be subjected. The IME and Bureau of Mines publications refer to a 

"no-fire level" of 0.04 watts (W), or 40 milliwatts (mW), for commercial detonators. Tr. 109-13; 

ex. P-13 at 14; P-15 at iii. Jhe no-fire level is defined as a 0.1 % firing (99.9% no-firing) 

probability with a 95% confidence level, which equates to an extremely low probability of firing. 

Chad Huntley, an electrical engineer atMSHA's TechnicaLSupportApproval and Certification 

Center, explained that the 0.1 % figure must be considered along with the 95% confideace factor. · 

Tt, ·1 11-13. It dees not mean that the. firing probability is one :in one~thousand. Rather the -. 

statistical probability of the occurrence of an event with a probability of 0.1 % and a 95% . 

·confidence.level is on the order of one in 909 million.7

· The40mWno fire level, which equates 

to ardnduced current of 200mA. Tr. 158. It is recognized as a "conservative" limit, because .. 

: ,many eommerciallyavailabledetonators manufactured in Nortb:·America have no fire levels · · 

· higher than40m W .. Detonators tested in 1973 by the Bureau of Mines were found to· have no-fire 

levels ranging from 77mW to 275mW. Tr. 114-23; ex.P-15 at 4-4. The Coalstar II detonator, 

which is currently approved for use in underground mines, has a no-fire level of 105m W. 

Tr. 123-25; ex. P-29. In light of the 200mA current associated with the 40mW no-fire level, the 

Secretary's 50mA permissible limit for stray currents in blasting circuits is quite conservative. 

6 Franklin Institute Research Laboratories, Technical Report, "Evaluation and 

Determination of Sensitivity and Electromagnetic Interactions of Commercial Blasting Caps," 

(August 1973), prepared for the Bureau of Mines, U.S. Department of Interior. Ex. P-15; 

Comsul Ltd., Final Report for Bureau of Mines, "The Implementation of UHF Radio 

Communications and CCTV Monitoring Systems in a Room and Pillar Metal/Non-Metal Mine," 

March 1981. Ex. P-16. 

7 At the hearing, Huntleywas qualified as an expert witness in the field of electrical 

engineering and testified that he did not specifically recall the probability, but believed it was one 

in nine billion. Tr. 113. The Secretary represented in her post-hearing brief that Huntley had 

subsequently learned that he had been mistaken, and that the probability was actually one in 909 

million. Sec'y Br. at 4, n. 2. 

31 FMSHRC 1443 
Tr. 158. It should be noted that permissible power and field strength levels are based upon the 

potential for induced current in one detonator. · · 

The strength of the electromagnetic field generated by an RF device, and the current it 

will induce in an electrical circuit, are largely functions of the device's power (generally stated in 

Watts) and the distance from the device's antenna. Distance from the transmitting antenna is a 

very significant factoi:.-because the strength of the field drops rapidly as the distance increases. At 

a distance of one wavelength from an RF antenna the available power in the RF field is only one 

one-hundredth (0.01) of the power at the transmitting antenna.8 At a distance of two wavelengths 

it is four times lower, or one four-hundredth of the power at the transmitting antenna. Each time 

the distance is doubled, the available power drops by a factor of four. Tr. 127-31; ex. P-15 at 

103. 

The IME's SLP-20 provides tables of recommended safe separation distances to be 

maintained between blasting circuits and different types of RF equipment. It primarily addresses 

higher-powered RF sources used in or found near surface blasting operations, and notes that, 

''Because of the uncertaiti.ties of RF absorption and scattering within mine tunnels, the potential 

hazard can only be evaluated with the aid of consultants." Ex. P-13 at 4. An August 2008 

addendum to SLP-20, intended to be more applicable in underground mines, consists of a 

"log-Iog·plot" showing acceptable electromagnetic field-strength, as a function of radio .. 

frequency; "thatone ohni electric detonators can be exp9sed ta while: minimizing the risk of 

'inadvertent initiation due to RF fields." Tr.147-49; e,x, .• p;.14.·· ne .. addendum·also sets forth a·· 

formula for calculating the field strength produced by multiple RF sources . 

. • ..... 

..... Because.of the.importance of safe separation distances, MSHArequires that- . 

'illanUfacturers of C&T systems specify, and provide justificationsJor,. separation distances for:-

each component of the. system, and mine operators "mlist specify these safe distances in their . 

ERPs ... and account for the total amount of energy transmitted from all devices and other 

sources used in the vicinity of blasting circuits." MSHA PPL No. P09-V-l 3, (October 23, 2009). 

Ex. P'."19. MSHA began certifying separation distances when approving equipment sometime 

prior to 2008, and some presently approved components do not reflect safe separation distances 

because they were not required when their approvals were processed. If no safe separation 

distance has been certified by MSHA, the operator is required to contact the manufacturer and 

obtain a justification for a proposed separation distance. Failing that, MSHA's Technical 

Support Approval and Certification Center would be consulted. Tr. 191-99. "MSHA has 

approved in ERPs a separation distance of up to 50 feet ... when the mine operator was unable 

to specify a safe distance based on a manufacturer's recommendation." Id. at 2. 

8 The wavelength of an RF transmission is a function of its frequency. A 400 MHz RF 

has a wavelength of approximately 2 feet, and a 900 MHz RF has a wavelength of approximately 

one foot. 

31 FMSHRC 1444 
Wireless C&T systems typically consist of three components; 1) two-way 

communications devices, that would be carried by a miner and transmit RF energy only when 

sending a message; 2) tracking ''nodes" hard-wired to surface equipmentthat continuously 

transmit when activated and are installed roughly every 200 feet along mine entries; and 3) ''tags" 

worn by miners that continuously transmit and are read by the nodes as the miners pass by. 

When transmitting, each of those components is a source of RF energy that produces an 

electromagnetic field. The Independent Miners and Associates (IMA), an association of 

anthracite miners, had expressed interest in two MSHA-approved wireless C&T systems for 

possible installation in anthracite mines, the L-3 Communications' "Wireless Mesh 

Communication and Tracking System" and the Matrix Design Group, LLC's, "RFID Miner 

Tracking and Text Messaging System." 

The L-3 system operates at 900MHz (one foot wavelength) and is composed .of a radio 

handset, which operates at a power level of 1 W (1 OOOm W) and has a specified separation 

distance of5 feet; a tracking node, which operates at a power level of SW (5,000mW) and.has a 

specified separation distance of 7 feet; and a tracking tag which apparently operates at virtually a 

zero power level and has a_~pecified separation distance ofO feet. Ex. P-17, P-24; tr. 193-203. 

The RF field strength generated by the node would be 5,000m W at its antenna, 50m W one foot 

from the antenna, 12.SmW two feet from the antenna and 3.125mW four,feet from the antenna . 

...... 

· ·. · . Tue Matrix system· operates-at 450MHz.{two foot wavelength}. and is composed of a.· 

·· 2-way text communicator which operates.at a power level of l:Sm W 'and has a specified 

separation distance of5 feet; a tracking node which operates at lOmW and:has no specified. 

separation distance; and a tracking tag which operates at a power level of 6mW and has no . 

: specifiedseparationdistance.9 Ex.·P-17,P;.24;,tr.193-203. TheRRfieldstrengthgeneratedby 

the text coiilm:u:nicator would be l 5m W at its antenna, 0.15m W tWo feetfrorit the antenna,~ 

0.0375mWfour feet from the antenna and 0.009375mW eight feet from the antenna. 

Events Leading to the Citation 

As specified in the Act, as of June 15, 2009, ERPs were required to provide for post 

accident communication between underground and surface personnel via a wireless two-way 

medium, and an electronic tracking system permitting surface personnel to determine the 

locations of any persons trapped underground. Operators were also permitted to set forth within 

the plan the reasons such provisions could not be adopted, and to propose alternative means of 

compliance approximating, as closely as possible, the functional utility of the wireless systems. 

9 Huntley testified that it is likely that a proposed separation distance of five feet would 

be approved for the lower-powered components of the Matrix system. Tr. 196-97. A 

justification for a zero separation distance for all components of the system has apparently been 

prepared. Tr. 199-202; ex. P-18. However, no formal application for separation distances other 

than those specified in MSHA's approvals, has been made, and the separation distances certified 

by MSHA in its approvals remain as stated. Tr. 201-02. 

31 FMSHRC 1445 
Because fully wireless C&T systems were not yet technologically feasible, MSHA sought to 

offer guidance to operators on acceptable alternatives to fully wireless systems in formulating the 

required revisions to their ERPs. MSHA Program Policy Letter (PPL) No. P09-V-01, issued on 

January 16, 2009, stated, with respect to communications systems: 10 

General Considerations - An alternative to a fully wireless communications 

system used t~eet the requirements of the MINER Act for post-accident 

communication either can be a system used for day-to-day operations or a stored 

system used in the event of an accident. Examples of currently available 

technologies that may be capable of best approximating a fully wireless 

communications system include, but are not limited to, leaky feeder, mesh, Wi-Fi 

and medium frequency systems. Any alternative system generally should: 

a. Have an untethered device that miners can use to communicate with the surface. 

The untethered device should be readily accessible to each group of miners working 

or traveling together and to any individual miner working or traveling alone. 

b. Provide communication in the form of two-way voice and/or two-way text 

messages. If :used, pre-programmed text messages should be capable of providing 

information to the surface necessary to determine the status of miners and the 

· conditions in the mine, as well as providing the necessary emergency response .. 

information to miners. . . . 

· · c. Provide an audible; visual; and/or Vibrating alarm .thatis· activated by an 

incoming signal on each untethered device·. The alarm should be distinguishable 

from the surrounding environment. 

· ··· d. Be capable of sending an emergency.message to each of the untethered devices. 

· ''-.e. Be installed to·.prevent interference with blasting circuits and other electrical . 

systems.·_ 

Ex. P-4 at 3. 

In a March 2009 meeting, anthracite coal miners raised safety concerns about the 

installation of wireless C&T systems using radio frequency equipment near blasting components 

and blasting operations. Tr. 48. The meeting was held at the headquarters of the Independent 

Miners and Associates, an association of anthracite coal miners in MSHA District 1. John 

Kuzar, MSHA's district manager for District 1, issued a memorandum on June 4, noting that, in 

response to the IMA's concerns, MSHA had agreed to participate in "several in-mine 

demonstrations of communication and tracking technology to jointly evaluate the RF levels 

emitted." Ex. P-30. Operators of anthracite mines using explosives were not required to submit 

purchase orders for such systems, but were required to comply with the MINER Act's 

requirement to submit updated ERPs providing for wireless C&T systems by June 15, 2009. 

10 Similar characteristics were identified for tracking systems. 

31 FMSHRC 1446 
On June 16, 2009, MSHA received. a, letter from RS&W, entitled "Addendum to 

Emergency Response Plan" stating, in iiS~tirety, tha(''A.Ily system that is guaranteed in writing 

and proved safe through extensive testing not to endanger my employees with radio frequency 

while using electronic detonators will be acceptable." Ex. P-3. On July 1, 2009, Kuzar 

responded to RS& W stating that ''the addendum failed to provide essential details concerning the 

nature of the communication and tracking system." Ex. P-4. Kuzar instructed RS&W to submit 

an updated ERP that previded specific details of its wireless two-way communication and 

electronic tracking systems by July 16, 2009, and that failure to do so would result in the 

issuance of a citation. Kuzar also forwarded a copy of PPL P09-V-01, to provide guidance on 

what was required under the Act. 

On July 21, 2009, MSHA's Technical Support Approvaland Certification Center 

conducted extensive testing of the MSHA-approved L-3 C&T system at the Alfred Brown Coal 

Company's, 7 Ft Slope Mine in Hegins, Pennsylvania. II The L-3 system was selected because 

the IMA had expressed interest in it and the similar Matrix system. Tr. 139. The State of 

Pennsylvania's Bureau of Mine Safety, the IMA and representatives of L-3 and the Alfred Brown 

mine participated in the teS!filg. 

The.testing was done in the gangway of the mine. Two components of the L-3 system_ 

were installed at the test location; the Access points (nodes), which have a.SW transmit power at 

.,900..~30 MHz and a Yagi(directional) antenna;. and Mesh Radio Handsets;. which have.a:lW·. 

transmit pow~ at 902-928 MHz and a whip antenna. The nooe's antenna·was placed in nine·'' , · 

different positions and orientations in tJie gangway .. An ·instrument referred to as a ''natda meter" 

was \ised to measure electromagnetic field strength at various locations in the gangway; At four , 

loeations one oi two handsets were als~ transmitting, and the strength of the combined RF fields. 

was measured. The specific equipment locations, antenna orientations, and measurements.are.·. 

presented in the test report. Ex. P-5 at 7-13. The highest measurement of field strength, 

11.76 V/m, was recorded at the closest test distance, two feet directly in front of the node's 

directional antenna - well within the MSHA-approved safe separation distance for the node of 

seven feet. 

In a second phase of the testing, a spectrum analyzer and current probe were used to 

measure the induced current in various lengths and configurations of simulated blasting circuits, 

with the node's antenna and/or the whip antenna of the handset transmitting at different locations 

and orientations. The results, as presented in the report, show that the highest reading, was 

obtained with 1.5-foot long leg wires shunted together, with the node's antenna 14 feet away and 

the handset antenna in direct contact with the wires. Ex. P-5 at 13-17. That reading, converted 

to electrical current, was 23mA. 

11 Huntley, who testified at the hearing, helped to conduct the tests, and was one of the 

authors of the test report. 

31FMSHRC1447 
The test report, entitled "Hazm;,<f:s of Radio Frequency (RF) Communication Equipment 

Operating Near Blasting Circuits at Antbfacite Mines,'' was issued on August 27, 2009. The 

results of the test generally established that the equipment could safely be used in typical 

anthracite mining conditions. 

None of the recorded measurements exceeded the Institute of Makers of 

Explosives (IME) Addendum to SLP-20 "Acceptable Field Strength for a One 

Ohm Electric Detonator" chart under a variety of conditions, nor did any induced 

currents, calculated from the recorded measurements, exceed 50mA. The highest 

readings of either measuring method were 11. 76 V /m ... and ... 23mA .... 

These maximum numbers are below the IM:E acceptable limit of 20 V /m at 900 

MHz and the MSHA maximum allowable current of 50mA (ref. 30CFR section 

75.1316). 

Ex. P-5 at 5. 

Following the test, it was agreed that testing of the Matrix system was not needed, 

because its components operated- at substantially lower power levels. Tr. 62, 74, 159-60. The 

highest powered component of the L-3 system is the node, with a power output of 5000m W. In 

contrast~ the highest powered component of the-Matrix system is the 2-way text communicator, 

--With:apower output of 15 inW. Ex.P<-24. · · · _-::.: .- ' --- - -

On August 28, Kuzar forwarded a copy of the test report to RS& W; advised that the 

-;testing established:that the L-3 system components could safely be operated in anthracite mines,,· 

-- and that RS& Wwas required to· submit a revised ERP that prov.ided for: updated C&T . :- ' -

capabilities~· 'On-September 10, RS&W submitted an ERP revision addressing post-accident ,_ . -

comniunications and tracking. Ex. P-8. The ERP specified that no totally wireless 

communication or electronic tracking system had yet been developed, that the currently approved 

wireless C&T systems emit RFs which could inadvertently detonate explosives in the mine, and 

that none of the currently approved wireless C&T systems had been tested in an anthracite mine, 

most of which are configured differently than bituminous coal mines. Ex. P-8. RS&W 

proposed, a8 an alternative, enhancements to its existing hardwired intercom system, pledging to 

install additional intercoms at 100 foot intervals along the gangway, and a permissible phone 

system at 100 foot intervals along the secondary escapeway. RS& W also sought to continue use 

of its existing magnetic tracking board, which reflects miners' locations with color-specific 

markers on a copy of the mine map, as called in on the intercom system. Ex. P-8. 

On October 5, 2009, Kuzar sent RS&W written notification that its current C&T 

provisions did not provide the level of protection mandated under the Act, and therefore, he 

would not approve the ·revised ERP. Ex. P-9 .

12 Kuzar acknowledged that although totally 

12 Section 316(b)(2)(C) oftheAct provides that, in reviewing and approving ERPs, the 

Secretary is required to: 

31FMSHRC1448 
wireless communication and/or electronic tracking systems had yet to be developed, there were 

several agency-approved "communication s)'stems that closely approximate the degree of 

functional utility and safety protection provided by a wireless two-way communications system . 

. . . Thus, .operators may not rely on traditional, hard-wired intercom systems in lieu of more 

advanced systems that provide greater miner protection ... ,. Ex. P-9. Kuzar went on to point 

out that MSHA believed that updated C&T systems could be used safely in anthracite mines, 

provided that sufficient.separation distances were specified. He ordered RS& W to either 

specifically identify limitations with particular communication and tracking systems that would 

prohibit use in its mine, or update its ERP to include such systems no later than October 28, 

2009. 

On October 27, 2009, RS& W's President, Randy Rothermel; responded to Kuzar's 

October 5 letter stating that he was unable to find a system safe enough for its mine, .and 

requested that Kuzar issue a citation for RS&W's failure to provide approved C&T systems. 

Ex. P-10. Consequently, MSHA issued Citation No. 7000435 on November 6, 2009, alleging a 

violation of Section 316(b) of the Act for RS&W' s failure to develop, adopt, and submit an 

updated ERP that provided for wireless communications and electronic tracking systems and 

failed to state sufficient reasons for not adopting such systems. Ex. P,-11. On November 10, 

2009, pursuant to· the Act, and Commission Procedural Rule 24, 29 C.F.R. § 2700.24, the 

Secretary referred the plan content dispute to.the· Commission .. ' The referral prays that the . . _ 

citation be affirmed and that Respondent be::ordered to submit a compliant revised ERP ,within : . ·· 

10 days of issuance of an order affirming the citation. Respondent prays that the citation .be· 

vacated and that the Secretary be directed to approve. alternate C&T systems until such time that 

wireless C&T systems have been thoroughly:tested and deemed safe for use in anthracite coal 

·mines with a'. "100% confidence level." ·Resp; St for.Hearirig Req. at L. · . 

take into consideration all comments submitted by miners or their representatives, 

Approved plans shall -

(I) afford miners a level of safety protection at least consistent 

with the existing standards, including standards mandated by law 

and regulation; 

(ii) reflect the most recent credible scientific research; 

(iii) be technologically feasible, make use of currently 

commercially available technology and account for the specific 

physical characteristics of the mine; and 

(iv) reflect the improvement in mine safety gained from 

experience under this Act and other worker safety and health laws. 

30 U.S.C. §876(b)(2)(c). 

31FMSHRC1449 
·~·.· 

Conclusions of Law - Further Factual Findings •· ': ~ • : . _,. ' ·.,:f-. ~ 

The Applicable Law 

The framework for resolution of Emergency Response Plan Disputes under the MINER 

Act was established by the Commission in its initial decision involving MSHA's refusal to 

approve an ERP provision. Emerald Coal Res. LP, 29 FMSHRC 956, 965 (Dec. 2007); see also 

Twentymile Coal Co., 30 FMSHRC 736, 747 (Aug. 2008). 

One of the cornerstone principles with regard to plan formulation 

under the Mine Act is that MSHA and the affected operator must negotiate 

in good faith for a reasonable period concerning a disputed plan provision: 

Carbon County Coal Co., 7 FMSHRC 1367, 1371(Sept.1985). The 

Commission has noted, ''Two key elements of good faith consultation are 

giving notice of a party's position and adequate discussion of disputed 

provisions." C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 1996) . 

. -

While the contents of a plan are based on consultations between 

the Secretary and the operators, the Conimission has recognized that ''the 

Secretary is [not] in the same position-as a'priv.ate party conducting arm's 

lengtli1 negotiations in a free market.".Id. at '17 46-.~As one .court ·has noted, 

''the Secretary must independently exer~ise [her]judgment with respect to 

the content of ... plans in connection with [her]. fmal approval of the 

. planJ~:UMWA v. Dole, 870 F.2d 662, 669 n,1-0 (D~C. Cir. 1989), quoting 

S. Rep. No. 181, 95th Cong., 25 (1977), reprinted. in Senate ~ubcom~ on 

Labor, Com. on Human Res., 95th Cong., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 613 (1978). Ultimately, 

the plan approval process involves an element of judgment on the 

Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692(May1996) 

("Peabody II"). "[A ]bsent bad faith or arbitrary action, the Secretary 

retains the discretion to insist upon the inclusion of specific provisions as a 

condition of the plan's approval." C. W. Mining, 18 FMSHRC at 17 46; see 

also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal 

of approval of water impoundment plan was not arbitrary or capricious 

where MSHA's conduct throughout the process was reasonable). 

Emerald, 29 FMSHRC at 966. 

The Commission went on to hold that the appropriate standard of review in ERP dispute 

proceedings is whether the Secretary's refusal to approve a proposed ERP provjsion was arbitrary 

and capricious. 

31 FMSHRC 1450 
The standard involves a review of the record to determine whether the Secretary 

properly exercised her discreti6n and judgment m~tli~ plan approval process. In 

this regard, the Commission's decision in Monterey Coal is instructive. In 

a:ffinning a citation for failing to supply data relating to impoundment pond 

construction, the Commission applied the "arbitrary and capricious" standard in . 

reviewing MSHA's withdrawal of its approval of an impoundment plan: 

We cannot conclude that MSHA's use of the Table [of 

recommended minimum design storm criteria] or its act of 

withdrawing the plan approval was arbitrary and capricious .... 

[P]rior to issuance of the citation Monterey was given unequivocal 

notice of and a reasonable opportunity to comply with MSHA's 

interpretation and use of the Table. In sum, we find the course of 

action taken by MSHA to have been a reasonable approach, and 

not arbitrary or capricious. 

Monterey Coal, 5 FMSHRC at 1019 (citation and footnote omitted); 

accord Peabody II, -18 FMSHRC at 692 n.6 (in reviewing the Secretary's 

refusal to approve a ventilation plan provision, Commission noted that the 

plan approval process involv.es an element of judgment on the part of the 

Secretary that is reviewed under an arbitrary .and capricio'us standard).· 

This standard appropriately respects the Secretary's judgmentwhile · · 

allowing review for abuse of discretion, errors.oflaw, and review of the 

record under the substantial evidence test ... See· En,ergy West Mining Co., . 

18 FMSHRC 565, 569(Apr.1996) ("abuse of discretion'~ has been found 

when "there is no evidence to support the decision .or if the decision is 

based on an improper understanding of the law") (citations omitted). We 

therefore affinn the judge's application of the arbitrary and capricious 

standard to the plan review. (footnote omited). 

Emerald, 29 FMSHRC at 966. 

Whether MSHA's Decision was Arbitrary. Capricious. or an Abuse of Discretion 

As evidenced by the numerous communications from MSHA's district manager, RS&W 

was repeatedly requested to provide infonnation regarding its evaluation of specific wireless 

C&T systems and problems or difficulties such systems would pose if operated in its mine. In 

response to RS&W's initial cursory "Addendum" to its ERP, Kui:ar promptly advised on July 1, 

2009, that because virtually no "essential details" had been provided, evaluation of the plan was 

impossible, and provided copies of PPL P09-V-Ol and a list of Questions and Answers specific 

to the wireless C&T system ERP requirement. That letter advised RS& W that if an updated ERP 

was not recieved by July 16, 2009, a citation would be issued. However, no citation was issued. 

Rather, in conjunction with representatives of an association of anthracite miners and the State of 

31FMSHRC1451 
··'''.~ 

Pennsylvania, MSHA conducted the July ~1 test of the appr?ved L-3 wireless C&T system in the 

Alfred Brown Anthracite Mine. The testfri!f established tliat the system could be safely operated 

in anthracite mines, provided that separation distances could be maintained and administrative 

controls could be developed to address situations where miners could not maintain such 

separations. The test report, which was issued on August 27, was forwarded to RS& W the 

following day. The forwarding letter noted that the requirement for submission of a revised ERP 

had been delayed to allow completion of the testing, and instructed that an updated ERP must be 

submitted no later than September 11, 2009. Ex. P-6. On September 4, Kuzar forwarded a 

second copy of PPL P09-V-Ol and an ERP checklist to assist RS& W in developing its plan. 

On September 11, RS& W submitted updated ERP provisions for post-accident 

communications and tracking, however, no wireless C&T.system was ineluded. RS&W asserted. 

that no "safe distance tables" could be accurately proposed by MSHA or the manufacturers, and 

that installation of the systems would be impossible due to the "small narrow entries in our 

mine," which would threaten the safety of miners by subjecting them to premature detonation of 

explosives. Alternative plans were presented that enhanced existing hard-wired C&T systems. 

On October 5, Kuzar resp_onded, advising RS&W that its submission did not provide the level of 

protection mandated by the Act, and could not be approved. Each of RS& W's asserted concerns 

was addressed. RS& W was referred to lists of MSHA-approved semi-wireless C&T systems that 

were commercially available. The test results were .. cited as ~stablishing the safety of MSHAapproved systems, provided that sufficient separation distances :w~e maintained .. ''when . 

tracking/communication componentS are operating (i.e.; turned on or active) in the proximity of 

·explosives and detonators," and proper procedures were established. for situations when required 

separation distances must be breached to work with explosives. .'· 

. ,: ·. 

Kuzar specifically requested that; to the .extent that RS& W continued to contend that it 

was not feasible to safely conduct mining operations with any available wireless C&T system, it 

needed to provide the following information: 

(1) specifically identify MSHA approved systems that you have considered; 

(2) specify the separation distances that are needed to safely use such systems in 

the proximity of explosive devices; 

(3) detail each of the anthracite mining tasks that cannot be performed given these 

separation distances; and 

(4) explain why procedures cannot be adopted (e.g., leaving the 

tracking/communication component at the minimum separation distance) that 

would allow miners to safely perform these ta~ks. 

Ex. P-9 at 3. · 

With respect to RS&W's protest that no testing had been done to detennine whether 

approved systems would work in anthracite mines that "twist/tum and pitch upward towards the 

surface and contain severe undulations within the coal seams," Kuzar requested that RS& W 

31 FMSHRC 1452 
specify limitations that were determined to exist with respect to existing systems in light of 

RS&w·s particular mine features and/or conditions .. Ex. P-9 at 4. On October 27, RS&W 

responded by requesting that a citation be issued, asserting that no system could be found that· 

was "safe enough,, for the RS&W mine. Ex. P-10. 

It is apparent, from the above, that MSHA fulfilled its obligation to negotiate in good 

faith over the disputed ERP provisions. It clearly stated its position on RS&W's submissions, 

provided or referred to extensive relevant materials, and requested specific information to 

evaluate RS&W's claim that no approved wireless C&T system could safely function in its mine. 

MSHA attempted to engage in a dialogue with RS&W, similar to the dialogue that it apparently 

was engaged in with other anthracite miners as of the time of the hearing. 13 However, it was 

rebuffed by RS&W~ which clearly indicated that it would not include post-accident wireless C&T 

systems in its ERP. 

In contrast, RS& W provided only cursory information about its safety concerns, and did 

not describe any specific problems posed for its operations by the subject C&T systems. Nor did 

it attempt to explain how the testing that had been done in the Alfred Brown mine could not be 

related to its mine. MSHAno doubt anticipated some ofRS&W's objections because it had 

considerable knowledge ofRS&W's operation8 and,was engaged in discussions with other 

anthracite miners. 14 The task of attempting to maintain a ,crucial safe separation distance when 

travefu1g· through a four, five or 'everi .a 10-Jootwide entry.thata blasting circuit also runs, through·· . 

poses obvious·,di:ffi.culties. Such difficulties might not be insurmountable, however, if proper . 

. 

13 Respondent introduced as an exhibit portions of an ·appti>ved ERP for the UAE Coal 

Corp·.·Associates' Harmony Mine, anutiderground:anthracitefiiine, Ex. R-7. That plan specifies 

safe separation distances of 50 feet for wireless C&T system components. The Harmony mine is 

somewhat unique in that it is relatively flat and most coal extraction is done with mechanized 

equipment. Head testified that it had been represented to him that the UAE ERP was the only 

MSHA- approved anthracite mine ERP. 

14 At the hearing, the Secretary objected to evidence concerning information as to 

RS&W's mining operations. Tr. 212-15. She maintains that argument in her brief, contending 

that information that was not available to an administrative decision-maker should not be 

considered in evaluating the administrator's decision. Sec'y Br. at 22-24. I have no difficulty 

with the argument, as a proposition oflaw. However, MSHA's District 1 conducts inspections of 

the RS& W mine, and undoubtedly has detailed knowledge of its mining operations. Thomas 

Garcia, supervisory safety and health specialist at MSHA' s District 1, testified that he was 

"familiar with the mining methods at the RS& W drift mine." Tr. 29. He also described entry 

dimensions in some detail, stated the number of miners, explained what they typically did, and 

discussed the various blasting operations. Tr. 32-44. In response to the Secretary's objection to 

information regarding the number of detonators used at RS& W's mine, Randy Rothermel, 

RS& W's president, explained that MSHA examines the records when it inspects the mine, and is 

"as aware as we are" of the numbers of detonators used. Tr. 214. 

31FMSHRC1453 
administrative controls could be developed that took into account that C&T equipment may not 

emit RF energy when not activated, 15 that separation from blasting circuits need be maintained 

only when they are wired to detonators, and how such factors interfaced with RS&W's specific 

blasting procedures. Only by making a good faith effort to.design wireless C&T systems, could 

it be demonstrated whether or not such systems could be used in the mine consistent with the 

Act's mandate. RS&W's intimate knowledge of its operations was essential to development of 

wireless C&T ERP provisions, and it was RS&W's statutory obligation to do so, or to "set forth 

within the plan the reasons such provisions can not be adopted." 

RS&W's concerns about the hazards posed by introducing RF sources into the mine's 

blasting environment were, and are, understandable and well-founded. Cindy Rothermel, 

RS& W's representative arid wife of its president, represehted at the hearing, that her father was 

killed by a premature detonation likely due to stray current in a blasting circuit. RS&W's 

concerns were understandably heightened by the manner in which some of the technical 

information has been stated. A ''no-fire" level, expressed as a 0.1% chance of firing, with a 

confidence level of 95%, suggests that there is a one in one thousand chance of a detonation, as 

RS&W appears to have Ul1derstood it. 16 The fact that the actual statistical probability of firing is 

several orders of magnitude lower, does not completely dispel that .understanding. Moreover, 

statements in authoritative technical literature, such as SLP-20, to the effect that the "probability 

• of an· accidental firing from RF energy is ·practically.nil,'~, or "extremely remote( could easily not . 

be very reassuring to a miner who has to connect detonator leg vyires'.in. close proximity to high- .. 

·explosives. 

The fact that negotiations concerning C&T-provisions. apparently continue .with other 

anthracite miners, is evidence that MSHA is sensitive to such concerns. Garcia acknowledged 

that such concerns were legitimate, and stated thatMSHA was intent··on working with operators 

of anthracite mines to satisfy their concerns. He explained that, in requesting specific 

information from operators, as in Kuzar's October 5 letter, MSHA was looking for explanations 

of tasks that could not be performed because of the C&T equipment, and why procedures could 

not be adopted to address such problems.17 "If they were uncomfortable with the system ... are 

15 PPL P09-V-1 states that the communication system "can be a system used for day-today operations or a stored system used in the event of an accident." Ex. P-4 at 3. 

16 Cindy Rothennel's opening statement included the following, "My son works at the 

mine, and yes, I am fearful of the one in one thousand chance that a detonator may explode." 

Tr. 25. 

17 H. John Head, an expert in the field of mining engineering called as a witness by 

RS& W, was concerned about whether separation distances could be maintained from a practical 

operational standpoint. While the main blasting circuit that runs to within 75 feet of the portal is 

used only to blast the gangway face - typically once per day, individual shots may be fired at the 

chute to clear the screen 100 or more times per day. A miner might be able to maintain a 

31 FMSHRC 1454 
there other administrative controls that they could possibly take to assure that it's - instead of 

100 percent sure, it would be 150 percent [sure that] nothing' could happen?" Tr. 64. He later 

added, "if they're reluctant to use the system, they felt that they were in danger because of these 

radio frequency waves, I'm sure there's something that could be worked out that would be 

appropriate - justified for both sides." Tr. 85-86. The give and take process described by Garcia 

never occurred, because RS& W did not fulfill its obligation under the Act to design systems for 

its mine, or submit a detailed statement of reasons why such systems could not be used, as Kuzar 

had requested. 

MSHA was left with virtually no choice but to issue the citation that RS& W invited.18 

It believed that wireless systems provide a more effective means .of post-accident communication 

and tracking than conventional hardwired systems, and that Congress' :inatidate for such systems 

was well-directed. RS& W apparently has no quarrel with that.assessment. Head agreed that 

''radios are the preferred means of communication if they can be used safely." Tr. 261. MSHA's 

testing in an anthracite drift mine had demonstrated that approved wireless C&T systems could 

be operated in that environment within safety parameters recognized within the blasting 

community and MSHA' s O!ffl long-standing safety standards, provided that appropriate safe 

separation distance8 were maintained and appropriate administrative controls could be developed 

and implemented. RS& W did not submit sufficient reasons why such systems could not be used 

mitsmine. . .• ~ . : ; ·'. 

RS&W argues that the MINER Act requires that approved ERPs must '·'afford miners a · 

level of safety consistent with existing standards, including standards mandated by law and 

· rego.lation/l and that requiring the introduction of RF sources into its mine .would violate that 

· · provision. 30 U.S.C. 376(b )(2)(C)(ii). There is no- question that- requiring RF soilrces itiits mine 

·would create hazards that did not exist under RS&W's currentlyapprovedplan. MSHA's . 

October 23, 2009, PPL P09-V-13, confirms that, "Communications and electronic tracking 

systems are sources of RF energythat can interfere with blasting circuits," and that "RF fields 

from tags and other electronic devices may or may not pose a threat to the detonator and its 

circuit." Ex. P-19 at 2. However, those hazards must be balanced against improvements to 

miner safety provided by enhanced post-accident communication and tracking systems. That 

separation distance of 5 feet in the gangway, but he could not do so in the monkey or coal 

workings. Head believed that separation distances of under 7 feet fell into a "gray area," and that 

the issue was one of management - "Can we keep the miners consistently a safe distance from 

that entire blasting circuit every time we energiie it or every time we hook it up? And I suggest 

to you that it's almost impossible to do from a practical standpoint." Tr. 260. 

18 Under other circumstances, Kuzar may have exercised discretion to defer enforcement 

action against RS& W pending the outcome of the discussion of similar issues with the other 

anthracite miners. However, the MINER Act requires that disputes over ERP provisions be 

resolved on an expedites basis, by issuance of a citation and immediate referral to the 

Commission. 

31FMSHRC1455 
critical evaluation can be made only by considering the detai.ls. of ERP provisions specifying 

precisely how such systems would be used, In RS& w's:Il1i~e. 

The Secretary argues that it has been conclusively demonstrated that currently approved 

systems can be used safely in RS&W's mine. 19 Whether or not the additional hazards posed by 

those systems' RF components can be maintained within acceptable limits is only one factor to 

be considered. One of.the administrative controls recognized as necessary to protect blasting 

circuits from RF sources is to require that the devices be deactivated and/or removed a safe 

distance away. Development of specific plan provisions would clarify how often such devices 

would have to be "shelved," and could identify other procedures necessary to accommodate 

mining operations that would detract from the effectiveness of such systems. 20 Another factor 

that could impact the systems' effectiveness would pe any measures necessary to minimize the 

effect of inadvertent non-compliance with administrative controls.21 Head was very concerned 

19 To demonstrate that the systems are safe even ifthe safe separation distance were to 

be breached, the Secretary introduced a calculation of the cumulative RF field strength of 

multiple Matrix system components; six tags, six two-way text communicators and two tracking 

nodes, and demonstrated that in the unlikely event that the components were all transmitting at 

the same time, the resultant field strength at two meters' distance would he less than the 

recognized 40M W no-fire limit. Tr. 164-79; ex. P-23 ~ While two meters is a generous . . 

separation distance, considering the layout ofRS&W's~mine, it.should bertoted that there is no 

separation·distance specified in MSHA's approval of the Matrix tracking node and tag. Ex. P-17. 

·Pursuant to Kuiar's instruction in the October 5 letter,-RS&W would be required to use the .. · 

"'default" SO-foot separation distance for those components. Ex. P-9 at 3~ How the required ~·· · 

· sepatatiori distances would be maintained, and what hnpact requited administrative controls . · 

would have on the effectiveness of the systems and mine operations, are questions that have yet 

to be answered. Parenthetically, I note that the Secretary made no attempt to demonstrate that 

Kuzar was aware of the calculation when he made his decision. 

20 As Randy Rothermel and Alfred Brown explained, because the blasting circuits run 

virtually the entire length of the gangway, any C&T component that required a continuous 

50-foot separation distance would "have to be checked at the portal," and would provide no postaccident enhancement to miner safety. Tr. 219, 237. 

21 In evaluating the need to provide guarding for mining machinery, the Commission has 

instructed that the evaluation of the magnitude of the hazard must be considered· in light of 

"inadvertent stumbling or falling, momentary inattenti~ or ordinary human carelessness," i.e., 

"the vagaries of human conduct." See, e.g., Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 

(Sept. 1984). In other words, it must be presumed that miners will make mistakes. Garcia and 

Brown raised concerns about miners responding to emergency situations, and whether they could 

be expected to maintain safe separation distances for RF equipment under such circumstances. 

Tr. 61, 236-37. As Garcia acknowledged, it is difficult to predict how miners will respond to 

emergencies and it must be assumed that miners will make mistakes. Tr. 61, 78-80. 

31 FMSHRC 1456 
about the management issues associated with trying to use such systems safely, and observed that 

if, because of safe separation or other requirements, miners were disconnected from the system 

more often than not- "what's to be gained." Tr. 261-62. Another critical factor in the balancing 

exercise is the consideration that the hazards posed to miners by the introduction of RF sources . 

will exist on a day-to-day basis, whereas, the enhancements to safety provided by wireless C&T 

systems would be realized only following an accident. 

I find that the Secretary has carried her burden of proving that MSHA's refusal to approve 

RS&W's revised ERP provisions addressing updated C&T systems, which did not include such 

systems in its plan or state sufficient reasons why such provisions could not be included, was not 

arbitrary and capricious. 

ORDER 

I find that RS&W violated the MINER Act as alleged in Citation No. 7000435. 

Respondent is directed to submit to MSHA on or before January 15, 2010, proposed revisions to 

its Emergency Response Plan that comply with the MINER Act's mandate. Included in its 

submission must be provisfons for MSHA-approved wireless communications and tracking 

systems for use in its mine, complying with all MSHA instructions on the contents of such 

provisions~ including separation distances for system components and specific· administrative. · .. 

. c~ntmls. to assure· safe operation of the systems. RS~ W may also _include reasons. why suGh . : 

provisions c.an not be adopted, and propose alternative means. of compliance. RS& W is further·, 

direc:ted to engage in good faith negotiations with MSHA over the content of any disputed plan·.· 

provisions.. · 

~ ' .. . 

The, time specified for submission recognizes that developm~t of.comprehensive ERP 

provisions will not be a simple task, and that Respondent may need to secure from manufacturers 

any needed justifications for separation distances that are not specified in MSHA approvals. 

Ongoing discussions between MSHA and anthracite coal mine operators, hopefully, including 

RS&W, may result in reevaluation by either or both parties of the hazards posed by the 

introduction of RF devices in such mines and/or the enhancements to safety provided by wireless 

systems over alternative measures. 

31 FMSHRC 1457 
Distribution (by electronic and first class mail): 

Stephen Turow, Esq., Lynne Bowman Dunbar, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1100 Wilson Blvd., 22"d Floor, Arlington, VA 22209-2296 

Cindy Rothermel, Randy Rothermel, R S & W Coal Company, Inc., 207 Creek Pond Road, 

Klingerstown, PA. 17941 

31 FMSHRC 1458 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, {MSHA), 

Petitioner 

v. 

721 19"' S~;- Suite 443 

Denver, CO 80202-2500 

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

December 9, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2007-844-M 

A.C. No. 26-01977-123952 

ROY AL CEMENT COMP ANY, INC., 

Respondent 

Royal Cement Company 

ORDER GRANTING SECRETARY'S MOTION 

FOR SUMMARY DECISION 

Before: Judge Manning 

This case is before me on a petition for assessment of civil penalty under section 105( d) 

of the Federal Mine Safety and Health Act of 1977; 30 ,U.S.C. § 801 et. setj. (the "Mine Act"). 

The case involves one citation alleging a violation of s~tion 47.51.ofthe Secretary's regulations·: 

and a proposed civil penalty of $60.00. 30 C.F.R § 47.5L The case was set for hearing in Las · ·· 

Vegas, Nevada. During a conference call before the hearing, the parties agreed that they do not 

dispute the essential facts .. I suggested that both patties file briefs on the issues, which I would , 

treat as cross-motions for summary decision, in lieu of holding an evidentiary hearing. The 

parties agreed to this procedure for the resolution of this case and each party filed a brief setting 

forth its position. 

Royal Cement Company operated a quarry and cement plant in Clark County, Nevada. 

On April 16, 2007, MSHA Inspector Manuel Palma issu,ed Citation No. 7985457 alleging a 

violation of section 47 .51. The citation alleges that the company did not have a current materials 

safety data sheet for each hazardous chemical used at the site. The inspector determined that an 

injury or illness was unlikely and that the violation was not significant and substantial. The 

regulation provides that all mines must have a material safety data sheet available for each 

hazardous chemical it uses. There is no dispute that material safety data sheets were not present 

at the site. Royal Cement contends that the facility has been shut down since 2003 and that 

MSHA did not have jurisdiction to inspect the property. 

Royal Cement was started by Aldo R. DiNardo in the late 1980s and the company has 

operated the facility on an intermittent basis since that time. Royal Cement states that it shut 

down the quarry in August 2003 and that it never reopened. The Secretary does not dispute this 

fact. No minerals were extracted from the quarry after that date. The citation was issued at the 

adjacent cement plant, which had also been shut down. At the time of the inspection, several 

31FMSHRC1459 
people were at the cement plant atte~pting to repair it. ],loyal Cement stated that in 2007 and 

2008, it did some repair work at the plant "hoping to reopen the mine in the future." (DiNardo 

letter dated April 14, 2009). The MSHA inspector arrived while this repair work was taking 

place. DiNardo said "[w]hen it became obvious that reopening the mine was an impossible 

dream, we ceased all operations." Id. The issue in this case is whether the repair work that was 

being conducted at the plant subjected the facility to Mine Act jurisdiction. 

I~ SUMMARY OF THE PARTIES' ARGUMENTS 

A. Secretary of Labor. 

. . 

The Secretary states that when Inspector Palma arrived, about 16 empIOyees of Royal 

Cement were working at the kiln for the cement plant. They had tom out the old concrete and 

brick and were getting ready to rebrick it. The MSHA-OSHA Jnteragency Agreement 

("Interagency Agreement") provides that MSHA has jurisdiction over "lands, structures, 

facilities, equipment, and other properties used in, to be used in or resulting from mineral 

extraction." (Written Arguments of Sec'y at 3). The cement plant is a facility that was "set up to 

crush, screen, and preheat clinker material to be milled through rod or ball mills in order to grind 

[the material] into cement powder." f(i.. As a consequence, the plant was subject to MSHA . 

· . jurisdiction. 

B. Royal Cement 

_ Royal Cement does not deny iltat MSHA has authority fo regulate _and impose standards 

011 mines and miners. It argues, howeyer, that MSHA 4oes not have this 'same authority over a · · mine that was shut down three years' before the subject.1n$pection. · No minerals were extracted 

after August 2003. Jn 2007, Royal Cement began "deferred maintenance repairing machinery in 

the adjacent cement shop." (Written Arguments of Royal Cement at 1). When the MSHA 

inspector arrived, he was advised that no mining was taking place. Jn response, the inspector 

said "[y]ou are all miners." Id. Royal Cement contends that the citations are "unfair and illegal 

since a mine did not exist." Id. Jn the twelve months that this repair work was going on, the 

company had no accidents. _The citation represents petty harassment. The Jnteragency 

Agreement with OSHA does not create a mine or justify MSHA overstepping its mandate. 

Mining stopped in 2003 and has never resumed. In 2004 another MSHA inspector visited the 

mine and stated that he was "closing the file." Id. at 2. "Absent any substantiation that MSHA is 

correct in labeling machinery maintenance employees as miners, Respondent requests that all 

proposed penalties be denied." Id. The Secretary failed to establish that "an active mine existed 

which the Mine Act empowers [her] to regulate." Id. 

II. ANALYSIS 

Section 67 of the Commission's Procedural Rules, 29 C.F.R, § 2700.67{b), sets forth the 

grounds for granting summary decision, as follows: 

31 FMSHRC 1460 
A motion for summary ciec~~~on shall b~ granted only if the entire 

record, including the pfo~dlligs, 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. 

I find that there is no genuine issue as to any material fact. The quarry and plant operated 

intermittently until August 2003, at which point both were closed. Royal Cement was removed 

from MSHA's active mine records. Sometime in 2007, Royal Cement began repairing 

equipment and machinery at the cement plant with the intent of restarting operations. MSHA 

inspected the plant while these repairs were being made and issued several citations, including 

the one at issue in this case. Neither the quarry nor the plant ever reopened for prodl!ction after 

this inspection. For purposes of this decision, 1 find that the only work performed at Royal 

Cement after 2003 was the repairs described above. 

Section 3(h)(l) of the Mine Act defines the term '':mine." 30 U.S.C. § 892(h)(l). For 

purposes of this case, a mllie is defined as "structures, facilities, equipment, machines, tools, or 

other property .· ... used in, or to be used in, the milling of ... minerals." Id. The Commission as 

well as courts have held that the term '':tnine".must be interpreted broadly to effectuate the intent 

of the .Mine Act. See, e;g. Cyprus Industriql Minerals Cq. v. F}v!SHRC, 664 F.2d 111·6; 1118 . 

(9th Cir. 1981). The Secretary, in interpreting the limits ofher jurisdiction under the Mine Act 

and the Occupational Safety and Health Act ("OSH Act"), promulgated the Jnteragency . . 

Agreement to help remove any confusion: as to ·the i"espectjve authority of those agencies. In the 

InteragencyAgreement, the Secretacy detemri,i:iedthat cement plants are covered by t)ie Mine Act 

·. · · rather than by the OSH Act. In sectio11 B( 6) of that agreement, the Secretary specifically 

provided that MSHA has jurisdiction over "alumina and cement plants." 44 Fed. Reg. 22827 

(April 17, 1979); http://www.msha.gov/regs/1979mshaoshammu.HTM. 

In Watkins Engineers & Constructors, the Commission held that cement plants are mines 

under the Mine Act. 24 FMSHRC 669 (July 2002). The Commission agreed with the 

Secretary's argument that cement plants are ''milling" operations and therefore fall within the 

Mine Act's definition of a ''mine." Id. at 676. Specifically, the Commission found the 

Secretary's interpretation of ''milling" to include cement plants to be consistent with ''the general 

usage of the term within the mining industry, ... the legislative history of the Mine Act, the 

Secretary's past enforcement, relevant precedent, and the [Interagency] Agreement." Id. 

It is important to note that the respondent in Watkins was a construction contractor that 

was constructing a new facility at an existing cement plant owned by a different company. Thus, 

its employees were not "miners" in the everyday meaning of that word, yet their work was 

subject to the jurisdiction of the Mine Act. The respondent in Watkins challenged the authority 

of the Secretary to include cement plants under the jurisdiction of the Mine Act, but the 

Commission rejected these arguments. Id. 676-677. 

31FMSHRC1461 
Based on the above, I find that worJ.c being perform.e.d at a cement plant is subject to the 

jurisdiction of the Mine Act because the.definition of the t~rm "mine'' includes mineral milling 

and "mineral milling" has been defined to include cement plants. The next issue is whether the 

repair work being performed at the Royal Cement plant was covered by the Mine Act given that 

the plant was not in operation and no extraction was taking place at the adjacent quarry. 

The Mine Act:s use of the language "used in, or to be used in, the milling of ... 

minerals" indicates that, for jurisdictional purposes, a "mine" includes not only facilities 

presently being used to mill minerals, but also facilities where mineral milling will be taking 

place in the future. 30 U.S.C. § 802(h)(l) (emphasis added). This interpretation is bolstered by a 

court of appeals decision referencing, with general approval, the interpretation of "to be used" to 

mean "contemplated use." Lancashire Coal Co. v. Secy of Labor, 968 F. D 388, 390 (3rd Cir. 

1992). Another federal court held that activities conducted at a site in preparation for future 

mining may bring the site within the Mine Act's definition of "mine" for the same reason. 

Cyprus Industrial Minerals Co. at 1117-1118. 

I find that the activities taking place at the plant on April 16, 2007, were subject to the 

jurisdiction of the Mine Act. Although no extraction was taking place at the quarry and cement 

was not being produced at the plant, Royal Cementemploye~s were making repairs to the kiln at 

the cement plant. DiNardo stated that these repairs were bemg made in anticipation of reopcming · 

: the facility. The repairs were being ~ade to ."structures;" .and "facilin¢s," atthe plant .using·, · · " 

"equipment":and "tools." These facilities had .been previously used to make cement and it was·,~· .. 

·Royal Cement's intention to use these facilities for that purpose again. Indeed, the only reas~n 

the repairs were being made was to get the plant rei;tdy to reopen; One of t4e principal arguments·· 

of Royal Cementis that there can be no jurisdiction if minerals are not being extracted from the. , 

ground. The Mine Act and associated case law make clear; howe,ver, that a cement plant is a , · ., 

"mine" and actions taken in preparation of opening a mine will bring the site within the 

jurisdictional reach of the Mine Act. As a consequence, the repair work being performed at the 

plant brought the site under the MSHA jurisdiction and fuspector Palma had the authority to 

issue the subject citation to Royal Cement. 

m. APPROPRIATE CML PENALTY 

Citation No. 7985457 is affirmed. Section 1 lO(i) of the Mine Act sets out six criteria to 

be considered in determining appropriate civil penalties. 30 U.S.C. § 1 lO(i). MSHA's online 

records show that Royal. Cement plant had a history of nine citations in the two years prior to 

April 16, 2007. These same records show that Royal Cement was a small, intermittent operator 

that employed about 20 people and worked about 10,400 hours in the second quarter of2007. 

The violation was abated in good faith. According to MSHA's website, the quarry and cement 

plant have now been abandoned. The violation was the result of the company's moderate to low 

negligence and the gravity was very low. Based on the penalty criteria, I find that the Secretary's 

proposed penalty of $60.00 for the citation is appropriate. 

31 FMSHRC 1462 
IV. ORDER 

The Secretary's motion for summary decision is GRANTED and Royal Cement's motion 

for summary decision is DENIED. Citation No. 7985457 is AFFIRMED and Royal Cement 

Company is s ORDERED TO PAY the Secretary of Labor the sum of$60.00 within 40 days of 

the date of this decision. 1 

Distribution: : 

Richard W. Manning 

Administrative Law Judge 

Larry Laiso~:Conference & Litigation Representative, U;S. Department of Labor, MSHA, 1000 

' Buchanan Blvd., #4; Boulder City, NV·89005 (Certified:Mail) · ,.. -, . • .. ·..:..·"~. • • ·.' • .;.-t • 

Aldo R. DiNardo, Royal Cement Co., Inc., 1436 Kensington Drive,, Fullerton, CA 92831 

(Certified Mail) 

RWM 

1 Payment should be sent to Mine Safety & Health Administration, U.S. Department of 

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

31 FMSHRC 1463 
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 

TELEPHONE: 202-434-9964 / FAX: 202-434-9949 

December 11, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2009-29 

A.C. No. 44-07137-16542I-OI 

v. 

PATRIOT MINING, LLC., 

Respondent 

Mine: No.2 

Appearances: 

Before: 

DECISION 

Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; 

Billy R. Shelton, Esq., Jones,_ Walters, Turner & Shelton, PLLC, 

Lexington, Kentucky, for the Respondent. 

Judge, w eisberger: 

Statement of the Case ·. · · 

·This case is befQre the com.inissiO.n. based. C>n a petition for assessment of civil penalty 

filed by the Secretary of Labor a11Qgfug'the violatjon by Patriot Mining ("Patriot") of vanous 

mandatory s8fety standardS set forth ip, Jitj.e 30 Code of Fe~eral .Regulations. 

The matter wa8 initially assigned to Judge Michael Zielinski, who scheduled the matter 

for December 9, 2008. On December 5, 2008 the case was re-assigned to the undersigned Judge, 

and was heard on December 10 and I I, 2008, in Bristol, Tennessee. 

The scope of the hearing was limited, pursuant to the parties' agreement, to the issue of 

significant and substantial relating to the following citations: 6641392, 6641363, 6641381, 

6641385, 6641379 and 6641354. 1 Also, Respondent challenged the existence of the condition or 

1

Patriot had filed a motion for an expedited hearing relating to the following " significant 

and substantial" violations; 6641354, 6641363, 6641369, 6641370, 6641379, 6641381, 6641385 

and 664 I 392. The Secretary did not object to the motion. At the hearing, Respondent withdrew 

the request to expedite regarding Citation Nos. 664 I 369 and 664 I 3 70, and to have them litigated 

at a future date. 

31 FMSHRC 1464 
practices cited in Citation No. 6641392/ 

I. Whether Citation Nos. 6641392. 6641363. 6641381. 6641385. 6641379 and 

6641354 are significant and substantial 

At the conclusion of the limited hearing, a bench decision was rendered which, with the 

exception of the correction of matters not of substance is set forth below: 

A. Citation No. 6641392 

.1:. Violation of30 C.F.R. § 75.523-l(a) 

Patriot operates ail underground coal mine. A battery-operated.scoop 

is used to transport materials down to the underground mine. The scoop is 

equipped with a parking brake. In addition a ''panic bar" that consists of a 

bar on the left side, and another on the right side of the cab. If either of these 

bars is hit, it has the effect of de-energizing the equipment i.e. a breaker 

switch is thiown which completely cuts off electric power to the scoop. 

On September 4, 2008, J anies Carroll, an MSHA inspector, inspected 

the scoop. After he tested the panic bar, he issued a citation alleging a· 

significant and substantialviolation·of 30 C.F.R. § 75.523-l(a), which in 

.. essence, requires that all self-propelled electric face equipment used in active 

workings of underground mines~ '~shall· be provided with a device that will 

quickly de-energize the tranlming motors of the eqmpinent 1n the event of an 

emergency." (Emphasis added). · . 

On the morning of September 4, before the arrival of the inspector, 

the operator of the scoop, Jerry Tensel Freeman, was in the process of 

conducting his pre-shift examination prior to the use of the scoop. As part of 

his inspection he hit the panic bar in order to check the parking brake. The 

panic bar successfully put in operation the parking brake, which is one of its 

functions; however, Freeman felt that the parking brake needed adjustment 

to make it more firm, and he stopped his pre-shift examination. 

After Freeman commenced to work on the parking brake, the 

inspector arrived on the section and asked Freeman to check the parking 

brake. He did it one time and it did not operate, i.e., it did not cut the power. 

According to Freeman, that day he hit the panic bar four times; three out of 

2

Regarding Citation Nos. 6641354, 6641363, 6641370, 6641379, 6641381, and 6641385, 

Respondent stipulated" ... to the condition or practice as set out in the citation." (Respondent's 

Proposed Stipulations). · 

31 FMSHRC 1465 
the four times it did work and did de-energize the equipment. After Freeman 

performed his test, the inspector hit the panic bar with nonnal pressure and 

it did not de-energize the equipment. He then used additional force and it did 

de-energize the equipment. 

Regardless of whether Freeman tested the equipment four times or 

three times, it is clear that the panic bar did not consistently do what it was 

designed to do, i.e., de-energize the scoop in the event of an emergency. I 

find that the fact that it did function with the application of additional force 

equates to a lapse in time in de-energizing the scoop. Further, in 

investigations subsequ~t to the issuance of the citation, it was discovered 

that a certain piece of equipment that the panic bars were attached to, which 

was critical to the operation of de-energizing, had been bent and prevented 

the panic bars from being depressed quickly. Additional force was necessary. 

The bent piece was subsequently fixed, and the bar operated properly. 

Based on all the above, I find that the evidence supports the finding 

of a violation in that the panic bar did not operate consistently and guickly. 

The fact that it didn't do it every time certainly indicates that it was not 

operating in the manner that it sliould m order to comply with the regulation. •.••;'" 

The operator argues: that Freemanwasprevented from completing the 

examination, because he was in theprocess of his pre-shift examination, and 

had to stop the examination in orderto comply with Carrqll' s requests. I note 

that Freeman testified and had he.:coniinμed with the examination he would 

have fully tested the panic bar by hitting it on the left side and hitting it on the 

right side. Responds argues, as a defense to the citation, that had this been 

done he would have picked up on the fact that the panic bar was not operating 

quickly, and would have had it fixed. It is Respondents position that the 

citation should be dismissed. 

Respondent relies on Giant Cement Co., 13 FMSHRC 286 (Febrwuy 

18, 1991). (Melick, J.) I find that reliance on this case misplaced. In Giant 

Cement, supra. the issue before Judge Melick was not whether there was a 

violation of a standard dealing with equipment, not whether equipment was 

functioning in conformity mandatory with a regulation. Rather, the operator 

therein was charged with not having made corrections in a timely manner, 

and Judge Melick held that it was premature time to find a violation because 

the inspection had not been done yet. In contrast, the case at bar, the issue is 

not whether a violative condition was corrected in a timely manner. The 

operator herein was cited on the ground that a piece of equipment was in such 

a condition that it did not comply with a regulatory standard. It is too 

speculative to rely on the fact that this condition would have been picked up 

31 FMSHRC 1466 
on a pre-shift examination, and would have been acted upon, especially in 

light of the fact that at times the bar sometimes worked, and at other times 

sometimes it didn't work. It's just too hypothetical to rely on the independent 

judgment and action of a person as a way of defeating the violation. 

For all these reasons, I find that the Secretary did ~stablish a violation 

of Section 75.523-1, supra. 

2. Significant and Substantial 

A "significant and substantial" violatioi;t is described in section 104( d)( 1) of the Mine 

Act as a violation "of such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A 

violation is properly designated significant and substantial "ifbased upon the particular facts 

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

will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 8_25 (April 1981). 

In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984),. the Commission explained 

·. · its: interpretation of the term "significant and· substantial" as follows: 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), 

the Commission stated further as follows: 

We have explained further that the third element of the Mathies formula 

"requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury." U. S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized 

that, in accordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect·of a hazard that must be 

significant and substantial. U. S. Steel Mining Company, Inc., 

6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company, Inc., 

6 FMSHRC 1573, 1574-75(July1984). 

31 FMSHRC 1467 
Following the dictates of Mathies, supra. I find that the operator did 

violate a mandatory standard, and this contributed to the risk of an accident 

happening, i.e., a miner banging a head on a low roof or running over a cable. 

The key issue is the third factor in Mathies, i.e., whether the Secretary has 

established the reasonable likelihood of a of an injury-producing event. 

-The scoop at issue does not have a canopy. The average height roof 

is 48 inches, according to the inspector's testimony that was not contradicted. 

There are places where as·measured by him, the height was only 42 inches. 

Thus there was a risk of the scoop operator coming in contact with the low 

roof and having to push the panic bar very quickly.· .. If it does not work 

quickly, any risk of resulting injuries would be exacerbated. fu addition, the 

inspector described various physical conditions that would tend to support a 

reasonable likelihood of an injury occurring event in addition to the low 

height of the roof. The inspector described poor visibility, the fact that there 

were, at times, persons, machinery, and cables in the vicinity of the operation 

of the scoop. None of this testimony was impeached or contradicted. He also 

indicated that as the battery of the scoop runs down it creates a condition 

where the equipment could become stuck in th~ tramming mode, and as a 

result, ''the brake" will not stop the.scoop. (Tr. 35). :Taking into account a 

combination of all the above, I find the Secretary has established a reasonable 

likelihood of an injury-producing event. · ..... ·. - -

The inspector also testified that there was n re~onable likelihood of 

various injuries that he described as contusions; abrasiQns,broken limbs, and 

also crushing injuries. This testimony was notcontradicted or impeached. 

For all the above reasons I find that the third and fourth elements of 

Mathies have been met, and that the Secretary has established that the 

violation was significant and substantial. 

B. Citation No. 6641363 

L. Violation of30 C.F.R. § 202(a) 

Citation 6641363, alleges a violation of30 C.F.R. § 75.202(a), and 

sets forth the existence of various conditions in that formed the basis for the 

issuance of the citation. The inspector testified regarding the existence of 

these conditions. fu essence, the Company does not dispute the existence of 

those facts. Under these circumstances and, I find that a reasonably prudent 

person familiar with the industry would have recognized that additional 

support is necessary, and so I find a violation of Section 75.202(a). 

31 FMSHRC 1468 
2. Significant and Substantial 

In addition to the existence of a violation of a mandatory standard, 

because of a lack of adequate roof support in the cited area, I find that the 

violation contributed to the hazard of a roof fall. With regard to the third and 

fourth elements set forth in Mathies, supra. i.e., the reasonable likelihood of 

a roof falt and resultant serious injuries. I note a combination of factors in the 

record. :in addition to the cited conditions, the inspector testified to three 

cracks in the roof in the area, each 15 feet long and between I/8th of an inch 

and 1/4 of an inch wide. This testimony was not impeached or contradicted. 

The testimony of the operator's witnesses indicated that the main function of 

the roof bolt heads and plates was to prevent drawrock :from falling. The 

inspector testified that he observed drawrock. approximately five feet by two 

to three inches thick, on the floor under the area cited. The witness for the 

company, Jerry Maggard, indicated that when he was in the area he did not 

see any drawrock on the floor. I don't find this testimony sufficient to 

contradict that of the inspector. Maggard was not in the area at the same 

time·that the inspector was. He was there about 10 hours later. Thus, his 

testimony does not contradict what was seen by the inspector atthe time that 

he saw it. Also; I find the latter's demeanor credible on this·point. 

: . : ~. 

With regard to. exposure of miners ·to: the hazzard, I note first of all 

that pumpers are required to go to the area once a weekto examine a pump. 

Also, pre-shift examiners eriter the area daily. l take ~cognizance of the 

argument of the company, in essence, that the shearing of the bolts and the 

creation of the conditions observed by the. inspector would have been 

observed in any subsequent examination. Also, it is a standard operating 

procedure of the company to note any hazardous conditions and tag the area 

where they exist, in order for the conditions to be corrected. Whether that 

would have been done in this case is somewhat hypothetical. It depends upon 

the judgment of the respondent's examiner. 

Considering all the above and the fact that the miner's are exposed 

to the cited area on a regular basis, I find that the third and fourth elements 

of Mathies, supra. have been met. I thus concude that the violation was 

significant and substantial. 

C. Citation No. 6641381 

L Violation of Section 75.202(a), supra 

With regard to Citation 6641381, the operator has stipulated to the 

existence of the conditions referred to in the citation which indicates the 

31 FMSHRC 1469 
existence of various cQnditions, including a rock brow. The inspector 

elaborated on that condition with regard to the hazards of a roof fall. A 

reasonably prudent person would have recognized that the roof was 

unsupported, and that additional support should have been provided. Since 

none was, I find a violation of Section 75.202(a), supra, as charged. 

2. Significant and Substantial 

Essentially for the reasons I set forth above, iJJ../J:J!, I find that the first 

two Mathies, supra. elements have been met. However, there is a serious 

issue with regard to the third element of Mathies, supra. The evidence would 

appear to indicate that there was probably a reasonable likelihood of a rock 

fall. However, in order to fit within the third element the it must be 

established that there was a reasonable likelihood that the rock fall will result 

in serious injuries. There has to be evidence of exposure of miners on a 

somewhat regular basis. The inspector indicated that he saw tracks in the 

Cited crosscut However, the record is not clear. Although these tracks may 

have existed, was this a one-time event? There isn't any evidence to indicate 

that vehicles with tracks go into the area on a regular basis. The Secretary 

argued that individuals who perform examinations of the adjoining entries, 

(the .track and the travelway entries), could enter.the cited crosscut, and 

persons could traverse the crosscut to examine. the. pump. Certainly,. these 

events are possible. but there isn't any evidence that travel into the area was 

reasonably likely to have occurred .. The only evidence with regard to travel 

in that area based upon personal knowledge consists of the testimonyofMike 

Williams, the operator's mine fonnan; I found him a credible witness. He 

outlined his route of travel, both in examining the travelway and belt entries, 

and the pump which he does on a daily basis. In executing all these duties 

none of his routes took him through the crosscut at issue. He also indicated 

that in examining the travelway entry when he looks into the crosscut in 

question, he is able to observe violative roof conditions, without the necessity 

of entering into a crosscut. I find there is not any persuasive evidence that 

there was a reasonable likelihood that miners would enter the crosscut at 

issue on a somewhat regular basis. 

Next, although there was a reasonable likelihood of a fall from the 

various conditions referred to, there isn't any evidence in the record that is 

persuasive with regard to the fall propagating out beyond the boundaries of 

· the crosscut into areas where persons travel, i.e., the adjacent entries. There 

isn't any evidence as to the distance between the specific violative conditions, 

and the various entries. For all these reasons I find that it the third element 

of Mathies, supra. has not been established and that the violation was not 

significant and substantial. 

31FMSHRC1470 
D. Citation No. 6641385 

L. Violation of Section 75.202(a). supra 

I take into account the stipulation by the company that it does not 

contest the existence of the conditions set forth in the citation. Basically the 

facts alleged in the citation, and set forth by Carroll in his testimony do not 

in any sigmficant fashion differ from those presented regarding Citation No. 

6641381. So for the reasons I set forth in my decision with regard to that. 

matter, I find that a violation of Section 75.202(a), supra has been 

established. 

2. Significant and Substantial 

I do not find any significant distinction in the facts presented here and 

the facts presented regarding Citation No. 6641381. There is evidence of 

tracks in the crosscut in issue. Carroll referred to several tracks, three and 

four-wheelers. However, there wasn't any evidence adduced as to or how 

often vehicular traffic goes through this crosscut. The record is silent as to 

whether the presence of tracks wasa one-time occurrence. Also, were is not 

any facts· adduced relating to· the reason· why· the vehieles went into the 

crosscut. There was· adduced evidence that there was a'rock.duster·ii1.the 

area, but there wasn't any evidence adduced· as to how frequentlythe crosscut 

is rock dusted. The Secretary has the·burden on all these issues~ I firici that 

there is not clear and conVincing evidence that miners are required to' be 

present in the crosscut a:t issue· on 'a regular or frequent basis. For these 

reasons, I find that the third element of Mathies, supra. has not been met and, 

therefore, the violation is not significant and substantial. 

E. Citation No. 6641379 

L. Violation of 75.202(a). supra 

The uncontroverted evidence indicates the presence of a brow that 

extended 10 feet. The evidence adduced yesterday established the hazard that 

this condition creates. Therefore, I find that a violation of Section 75.202(a), 

supra, has been established. 

2. Significant and Substantial 

A critical issue is presented with regard to the specific location of the 

violative condition. It appears to be the Secretary argument that even if the 

violative condition was on the "tight side" ("back side'') of the entry, miners 

31FMSHRC1471 
who shovel and rock dust would be expose,ci to the hazzards contributed by 

the existence of a brow. I find that there is not clear and convincing evidence 

in the record to establish that miners do shovel or perform other duties on the 

back side of the belt. The record is silent regarding the distance between the 

belt and the rib on the tight side; whether it is physically possible to shovel 

and perform other duties on this side; and whether all such work can be 

performed from the wide side. There is not any credible evidence regarding 

under what conditions and how frequently work would have to be done on the 

tight side, if at all. The inspector offered his opinion regarding some of these 

issues. However, I find that the record does not contain any factual bases for 

his opinions. I focus on the fact that the Secretary has the burden of proving 

by a preponderanc~ of evidence all elements of the citation at issue, 

specifically the third element of Mathies, supra, i.e., the reasonable 

likelihood of a rock.fall causing a serious injury. In order to meet this burden 

the evidence adduced by the .Secretary must be clear and convincing that the 

violative condition was on the wide side, which the evidence clearly 

establishes_is the area where men regularly traverse to perform various duties, 

including maintenance. 3 However, the inspector's testimony on this matter 

was not consistent. He first indicated that the violative.condition was on the . 

wide side orthe walk side. However, on ~ross;.examination he indicated that 

after the citation wa,s issued, in preparation for abatement six timbers were. 

installed on the back side. Further, I note the inspectors' statement on crossexamination tbat six timbers wer~ installed on the back side. However, later 

on in the trial he changed his testimony and : indicated that timbers were set 

. on the wide side. He a,ttempted to explain that iticonsistency by indicating; 

in essence, that he just did not· ·recall. Because his testimony was· 

inconsistent, I find it somewhat unreliable. 

Also, the inspector's notes indicate conditions on the walkway side 

of the belt. (Gov't Exhibit 10). However, his testimony was not clear 

whether this statement was based on his recollection, or upon his having read 

notes that were taken by a trainee who was along with him in the inspection. 

It is not clear and convincing and that the statement was based strictly on his 

own recollection. 

Maggard testified that he was the person who actually installed the 

timbers in question. He testified unequivocally that the timbers that were 

installed that formed the basis of the abatement, were on the off side and not 

on the walk side of the belt. I observed his demeanor and found him a 

credible witness. 

3

1 note that examiners travel the wide side on a daily basis. 

31FMSHRC1472 
For all these reas~ns I find that the Secretary has not established by 

clear and convincing evidence that the violative condition was on the walk 

side. The weight of evidence establishes that the condition existed, but on the 

narrow side. The evidence has not established that miners are subjected to 

being in that area on a regular basis. 

Based on all of the above, I find that the Secretary has not established 

the existence of the third element set forth in Mathies, supra. Thus, I find 

that the violation was not significant and substantial. 

F. Citation No. 6641354 

.L Violation of Section 75.202(al. supra 

Essentially the reasons that I indicated with regard to the other 

citations involving issues of inadequate roof support, I find that there was a 

significant area of unsupported roof as depicted on Joint Exhibits 2A and 2B, 

and testified to by the inspector. The existence of these conditions were not 

put into issue by the operator. Therefore, I find the Respondent did violate 

Section 75.202(a), suprl:v 

2.- Significant and Substantial ' ; · 

·First of all, I note that this is de novo proceeding and in analyzing the 

third element of Mathies, ·:1 have to' ascertairi if the eilideiice establishes that 

the violative condition was such that an injuryproducing event, i.e. a roof 

fall, was reasonably likely considering continued nonnal mining operations. 

The fact that the Company took action after the conditions were pointed out 

by the inspector really doesn't have much relevance. The analysis must focus 

on the relevant of conditions within the context of continued mining 

operations. I note that, as distinguished from the last two cases, the violative 

condition was on the wide side of a belt entry, an area where people travel. 

This side is where belt examiners are in the area daily. Also, shovelers work 

at that side. I find the existence of a hazzard of a roof fall existed along with 

exposure of miners. Certainly any rock falling on persons would cause a very 

serious injury. I find that the third and fourth elements of Mathies, supra. 

have been met. 

Therefore, I find the Secretary has established the violation therein 

was significant and substantial. 

II. Penalty 

31FMSHRC1473 
After the hearing, the parties entered into extensive settlement negotiations, and reached a 

settlement regarding the remainder of the citations in this case, and the penalties for the citations 

that were litigated. On November 25, 2009, after nwnerous extensions, the Secretary filed a 

motion seeking approval of the parties' agreement. The original assessment was $22,062 and the 

parties request approval of their agreement for civil penalties totaling $12,094. 

I reviewed the_parties' representations, along with all the evidence and filings in this case, 

and find that the settlement is consistent with the Federal Mine Safety and Health Act of 1977 

("The Act"), and I approve it. 

· It is ORDERED that within 30 days of this decision, the Respondent shall pay a total 

civil penaltyof$12,094.00. 

AA~ Administrative Law Judge 

.... 

Distribution: 

Francine Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209:-2247 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive. Suite 

310, Lexington, KY 40509 · · 

/Ip 

31 FMSHRC 1474 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTAATIVE LAW JUDGES 

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

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 / FAX: 202-434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

~ti ti oner 

v. 

FREEDOM ENERGY MINING CO., 

Respondent 

December 28, 2009 

CNIL PENALTY PROCEEDING 

Docket No. KENT 2008-778 

A.C. No. 15-07082-142073-03 

MineNo.1 

DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, and Vicki Mullins, CLR, Mine Safety and Health 

Administration (MSHA), Pikeville, Kentucky, for the Petitioner; 

Carol Ann Marunich, Esq., Dinsmore & Shohl, LLC, Morgantown, West Virginia 

for the Respondent. 

Before: Judge Weisberger 

·, 

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

Secretary of Labor {"Secretary''), alleging violatiqns by Freedom Energy Mining Company 

(''Freedom") of30 C.F.R. § 75.202{a) and.§ 75.400. Pqrsuant to notice, the case was heard in.. , _, __ 

Richmond, Kentucky on October 1_5, 2009. Subsequent to the hearing, ·each party filed proposed ... 

findings of fact and a brief. 

I. Violations of 30 C.F.R. § 75.202(a) 

After both sides rested, the parties agreed to make oral arguments and accept the format 

of a bench decision. The decision, with the exception of corrections of non-substantive matters, 

is set forth as follows: 

A. Citation No. 6657078 

L Violation of 30 C.F.R. § 75.202(a) 

Freedom Energy operates the coal mine at issue. On February 7, 

2008, MSHA Inspector Roger Workman inspected the underground 

operation. He examined the belt entry, and observed gaps in a comer of a rib 

located at crosscut No. 21 where it intersected with the belt entry. 

31FMSHRC1475 
He issued a citation alleging a violation of 30 C.F.R. § 75.202(a) which 

provides as follows: "[t]he·roof, face and ribs of areas where persons work 

or travel shall be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock bursts." 

The inspector testified that the gap was fourteen inches in the rib side 

and along the crosscut side~ and six inches wide in the rib side along the belt 

entry. As a consequence of the gaps that extended to the top of the ribs, a 

block at the intersection of the track entry and the crosscut had separated 

from the ribs. The block was approximately three feet wide along the 

~osscut side and thirty inches wide along the entry side. 

Respondent conceded that the facts established a violation. Further, 

the inspector's testimony as to the conditions he observed was not 

contradicted. Thus, I find that there was a violation of Section 75.202(a). 

2. Sipificant and Substantial 

The critical issue is whether or not the violation was significant 

and substantial as alleged in the.citation. 

A "significant and substantial" violation is described in 

Section 104(d)(l) of the Mine Act as a violation "of such nature as could 

significantly and substaiitially;contribute to the ·cause and effect of a coal · 

or other mine safety or health' hazard/'. 30 U.S.C. § 814(d)(l). A violation 

is properly designated significant and substantial ''if, based upon the 

particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness 

of a reasonably serious nature." Cement Division, National Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the 

Commission explained its interpretation of the term "significant and 

substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under National 

Gypsum, the Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of danger to safety--

contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and (4) 

a reasonable likelihood that the injury in question will be of 

31 FMSHRC 1476 · 

.. ' . "; ~ 
a reasonably serious nature. 

In U.S. Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 

(August 1985), the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." U. S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (August 1984). We have 

emphasized that, in accordance with the language of section 

104( d)(l ), it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. . 

U. S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 

1984); U. S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-

75 (July 1984). 

(emphasis added). 

The record establishes that Respondent violated a mandatory 

standard, i.e., Section 75.202(a). Also, I find, ·based upon the testimony of 

the inspector, that people do work in the area, although it is not clear how 

frequently they work in the area and;how close to the rib they are when 

they perform: their duties. However,:there certainly is a possibility, as 

explained by the inspector, that the c~b could •fall, and a person :could be 

pinried ,between the rib ang the belt~' and cfti:shed,· or seriously injur¢d. At . 

this point:..J amjust recognizing that a h~ard was created. lam not· 

commenting at all upon the degree of the hazard. 

The critical issue in this case is the third element set forth in 

Mathies, which requires a reasonable likelihood of an injury-producing 

event. Here the injury-producing event would be material falling off the 

rib. The record does not contain sufficient evidence that there were facts 

in existence that would have made the injury-producing event reasonably 

likely to have occurred. 

The inspector indicated that portions of this rib or a rock could fall 

on persons working in the area. However, there is an absence of any 

evidence of the existence of any physical conditions that would lead to a 

conclusion that the hazard of a fall of either the entire rib or a portion was 

reasonably likely to have occurred. There was not any evidence of any of 

the ribs being under pressure. There was not any evidence adduced of 

deterioration of the rock pillars. There was not any evidence presented of 

any defects in the roof. Therefore, I find that the evidence is insufficient to 

31FMSHRC1477 
establish the third element of Mathies. Hence, I find it has not been 

established by a preponderance of the evidence that the violation was 

significant and substantial. 

3. Penalty 

-The Secretary conceded that the violation was abated in a timely 

fashion. The Secretary submitted a list of the company's history of 

violations. I fmd there is not anything in that exhibit to militate in favor of 

an increase or decrease in penalty. 

The parties stipulated that the imposition of a penalty would not affect 

the operator's ability to continue in business. Also, the parties stipulated 

regarding the coal production of the company, as apparently relating to its 

size. However, there is not any other evidence relating production statistics 

to the size of the company. Therefore, I find that there is not sufficient 

evidence ~ the record to justify either an increase or a decrease in penalty 

based upon that factor. 

I find the grav.ity of the violation to·have been:mpderate. I find that, 

regarding gravity, the.focus of the.evaluatienis the degree of serfousness in 

terms of the type ofinjury, ·even though the likelihood;ofits occurrence may 

be remote; Since there was a possibility of a person being crushed . or 

suffering a brokenbone, I conclude that the levelofthe gravity was moderate.· 

I find that the cited·conditions were extensive anq obvious due to the 

height and width of the gap in the.ribs in two locations. However, there is not 

any persuasive evidence as to the length of time the conditions existed. The 

inspector indicated that he observed that there was rock dust in the cracks, 

which would indicate that the cracks were in existence first, and then the area 

was rock dusted. But the record does not contain any evidence when the last 

rock dusting occurred in relation to the cracks. 

·Brian Slone, Respondent's mine foreman, testified that the company 

had not been cited by previous inspectors for the cited conditions. This 

testimony was not impeached or contradicted. Further, there is not any 

evidence that the company had any prior knowledge of these conditions. I 

thus find the existence of factors significantly mitigating Respondent's 

negligence. 

Taking into account all of the factors set forth in Section l IO(i) of the 

Federal Mine Safety and Health Act of 1977 ("the Act"), I find that a penalty 

of $250 is appropriate. 

31 FMSHRC 1478 
B. Citation No. 6657084 

L Violation of 30 C.F.R. § 75.202(a) 

On February 12, 2008, Workman issued a citation based upon the 

existence- of a crack in the roof in the No. 1 crosscut, alleging a violation of 

Section 75.202(a). 

Workman indicated that the crack extended approximately twenty feet 

in the intersection. He approximated that it was between one inch and 

eighteen inches wide. According to.Workman, some sections may have been 

smaller; some areas larger. Workman indicated that he observed jagged 

pieces of rock. He also indicated that miners do,·on.occasion, work in the 

area. Rodney Chapman, one of Respondent's mine foremen, who 

accompanied Workman, did not contradict Workman's testimony regarding 

the dimensic:>ns of the crack. 

It is Respondent's position that cribs had been installed in the area, 

and as a consequence th{ll'e was not any hazard. · · : ,. . . . ~ 

I find, taking into· acc.ount the length and width of the crack, and the · 

inspector's observation of jagged pieces ofrock, that there was some hazard· 

related to a ·fall of the: roof.:, I thus find that· it has been -established that 

Respondent violated Section. 75202(a). • .·· . ···.:"" 

2. Sipificant and Substantial 

The inspector was asked for his opinion as to why he found the 

yiolation significant and substantial. 1 His testimony is as follows: 

Q. Okay. And why did you think an accident was 

reasonably likely? 

A. Well, this area is real muddy ... 

... It's got mud and water on the mine floor, and you've got 

your noise from your belt head. And then you got miners that 

has to work in this place to maintain it. And that eliminates 

your -- you can't hear the -- if your roof made a noise, you 

wouldn't hear it for the belt head. And if you're standing in 

mud too long, it limits your mobility. So I -- if a piece of this 

1 Some of his testimony was in response to questions regarding gravity, and some was 

given in response to spe~ific questions regarding significant and substantial. 

31FMSHRC1479 
rock fall, I don't.know if a person could move fast enough to 

get away from it or I don't think he'd hear it. 

*** 

Q. Did you mark this particular violation as significant and 

substantial? 

-A. Yes, I did. 

Q. Why? 

A. Because you got men working in the area. The belt 

line's under violation to be cleaned and rock dusted. If an 

accident would occur, it would be the -- more than likely it 

would be a permanently disabling injury. · 

(Tr. 51-53.) 

I note that the critical issue, the reasonable likelihood of an 

injury-producing event, i.e., a roof fall, was not addressed. There is not any 

persuasive. evidence that would tend to establish a reasonable likelihood of 

the roof falling, i.e. the specific conditions that would have made such an 

event reasonably likely to have occurr.ed. Therefore, I find that the Secretary 

has not met her burden of establishing that the violation ·was significant and 

. substantial. Hence,J find the.violationwas:not significant and·substantial. ··, ;·. 

Penalty 

A number of factors :are in common with those I discussed with 

regard to the prior violation, except for the following;.the-cited condition 

was extensive and obvious due to its length and width; the company's 

witness testified that cribs had been installed a few days, or maybe a week, 

before the citation was issued, and an inference could be drawn that this 

condition had been in existence at least a few days before it was cited. 

Considering all the factors in 11 O(i) of the Act, I fmd that a penalty 

of $500 is appropriate. 

II. Violations of 30 C.F.R. § 75.400 

A. Citation No. 6656083 

1. Violation of 30 C.F.R. § 75.400 

On February 12, 2008, Workman inspected the tail end of the B-9 conveyor belt. He 

indicated that he observed accumulations of loose coal, float dust, fine coal, and coal inside the 

tail roller, which was sixty-eight inches off the ground. He indicated that the coal was piled at 

31 FMSHRC 1480 
both ends of the roller, extended one half the way up the shaft of the roller, and was twelve 

inches deep. He testified that there was coat"inside the belt frame, and it was in contact with the 

bottom belt of the conveyor. According to Workman, the belt was running in the accumulations, 

which were black at the roller, and dry at the tail piece. Further, there was float coal dust on the 

mine floor under the tail piece. The float coal dust extended from rib for to rib for approximately 

320 feet outby the tail. He described the accumulation as a thin coat on top ofrock dust, and 

estimated that it was abeut a sixteenth of an inch to a one-eighth inch deep. However, he did not 

measure its depth. Essentially, the operator did not contradict or impeach the inspector's 

testimony with regard to the extent and location of the accumulations of coal. 

The inspector issued a citation alleging a violationof30 C.F.R. § 75.400 which, as 

pertinent, provides as follows: "Coal dust, including fl.oat coal dust deposited on rock~dusted 

surfaces, loose coal, and other combustible materials, shall be cleaned up arid not be .permitted to 

accumulate in active workings, or on diesel-powered and electric equipment therein." I find 

based on the testimony of the inspector, and considering the extent of the accumulations, that the 

operator was not in compliance with Section 75.400. 

2. Sipificant and Substantial 

, · The inspector characterized the violation as::being ·significant and substantial,, . In this. · .. 

•.connection, he concluded that a hazard:existed at the tailpiece because he has ·'~seen, tailpieces .. ' 

·when they allowed the coal to run in them to the bearing to gethot and start smoking and 

sometimes catch on fire. [sic]" {Tr. 167.) He explained his reasons for markingthe gravity of the 

violation as "reasonably likely" as follows: 

At the bearing, it wasn't runiling liot·at that time, in a few minutes 

running it could dry the grease out. And then you'd have the metal inside the 

bearing running metal to metal. And it could· become hot and ignite fire at 

. the tailpiece because there's combustible material at the tailpiece. 

(Tr. 170.) (emphasis added) 

In this connection, he stated that coal dust was in contact with the bearing and was getting 

inside the bearing. He opined that with continued operations for two to three hours, the lubricant 

"probably" would dry out. (Tr. 174.) He testified that he ''had that happen in the past in mines 

[he] worked at." (Tr. 175.) He was specifically asked to explain why he marked the violation as 

significant and substantial, and he indicated that there was "a good possibility" of ignition at the 

tailpiece because the bearing was being exposed to combustible material, "and due to people 

working outby and from being in smoke." (Tr. 176.) 

I find that the record establishes the first two elements set forth in Mathies, 6 FMSHRC 1. 

Although the inspector opined that in normal operations the lubricant and the bearing would dry 

31FMSHRC1481 
out after two or three hours causing friction which will ignite the combustible material,2 there 

was not any evidence adduced as to how frequently lubrication is checked, or more is added. 

Aside from proffering his opinion, the inspector did not provide any basis for his conclusion with 

regard to the amount of time it would take, in normal operations, for the lubricant to dry out. 

Further, I note the absence of ignition sources or conditions which would have 

made it 

reasonably likely for a fire to have resulted with continued operations. Thus, there was 

not any evidence of a hot or red bearing or other metal members, metal to metal rubbing,3 float 

coal dust in the air, or inadequate air ventilation. 

For all these reasons, I find, within this context, that it has not been established 

that the hazard of an injury producing event, i.e. a fire or explosion, was reasonably likely to have 

occurred. Thus, I conclude that it has not been established that the violation was significant and 

substantial. 

3.. Penalty 

I incorporate herein the earlier discussion of penalty .factors relating to the 

-company's operation as set forth above, supra Section I:. -~e Secretary indicated that ·thy 

·violative conditions .were abated in a timely fashion. Because the accumulations :existed .for· a 

length of 320 feet extending rib to rib, I find that they were ·extensive;, especially considering that 

the entire length· of the belt was only approximately 1, 100 feet , ·· 

The evidence is not clear with regard to the .length of time that the conditions .had 

been in existence, There is not any evidence that the belt w~ out of alignment which could have 

caused the accumulations to have occurred very quickly. Also, Workman testified that the 

accumulations were dry at the tailpiece, which would tend to indicate that any spillage was not 

very recent. However, there was not any specific evidence adduced as to whether the 

2

lt is significant to note that in earlier testimony, when he was specifically asked to 

provide his reasons for considering the violation to be "reasonably likely," he explained that as a 

consequence of the lack of lubricant and resultant metal to metal contact within the bearing, it 

"could become hot and ignite fire." (Tr. 170.) (emphasis added) This qualification dilutes the 

weight to be accorded his subsequent testimony that the dry condition of the bearing "will" ignite 

combustible material. (Tr. 171.) 

3

It is significant that at cross examination, Workman was asked whether he identified any 

heat source. He responded as follows: "Well, I think the tail burning is a heat source because 

even though it wasn't hot, it had a potential. And had the mine continued to run that way, I think 

you would have a hot bearing." (Tr. 191.) (emphasis added) In the absence of any further 

explanation, I find that this testimony is insufficient to predicate a finding that it was "reasonably 

likely" that continued operations would have resulted in a hot bearing. 

31FMSHRC1482 
accumulations were uniformly "dry'' throughout their various locations, nor was there evidence 

adduced as to whether the inspector actually touched the accumulations and, ifso, at what 

locations. On the other hand, Rodney Chapman, who accompanied Workman, testified that the 

accumulations were wet, and had a "shiny glow" (Tr. 229.), which indicated to him that the 

material had been sprayed when it came through the feeder, and that the accumulations had 

recently occurred. Considering all of the above, I find that the level of negligence was no more 

than moderate. 

Because the accumulations could have resulted in burns or smoke inhalation, I 

find that the level of gravity was moderate. 

Considering all of the factors of n O(i) of the Act, I find that a penalty of $500 is 

appropriate for this violation. 

B. Citation No. 6657082 

1. _ Violation of 30 C.F.R. § 75.400 

On February 11, 2008, Workman examined the interior of an electrical control 

-starter box, which supplies power to a conveyor beltdrive.: ·He said that he observed float du,st on 

. the·floorofthebox and on the electrical componentS .. :He described thel1oat dustasblackand .·_ .. • 

·dry. He issued a citation alleging a violation of Section 75.400::. Workman's testimonyregardirig 

the accumulation of float-coal and dust was not impeached or contradicted. Thus, based upon his 

testimony, I find that Respondent violated Section 75.400. 

2. Sipificant and Substantial · · "· 

Workman opined that ignition inside the box due to a spark was reasonably likely 

to have occurred, because the box is powered by 480 volts. Also, should an arc occur, flames 

could shoot out and injure a miner as persons travel by the box. In this connection, he noted that 

one person services the box once a week. Also, the belt head in the area is serviced once every 

twenty-four hours. Workman indicated that a person could suffer burns or smoke installation. 

Workman was asked specifically whether the violation was significant and 

substantial and he indicated in the affirmative because men work in the area,·and if there was an 

arc inside the box it "could" cause an ignition of the coal dust inside the box "and create serious 

fire." (Tr. 184.) 

On cross examination, he indicated that there was only one ignition source, which 

would be a short circuit inside the electrical box. He indicated that he did not observe any bare 

wires; the wires and cables were insulated. Further, significantly, Workman indicated that when 

he inspected the box there was not any arcing or sparking, "[j]ust the potential." (Tr. 206.) 

Arnold Fletcher, an MSHA inspector and electrical specialist, accompanied 

31 FMSHRC 1483 
Workman during the latter's inspection on February 12. He indicated that he looked inside the 

starter box and that it was covered with float dust that was grey to black in color. He indicated 

that there were items in the box that "could be" ignition sources, such as the presence of several 

electrical components, including a breaker and transfonners. (Tr. 215.) He indicated that all 

these components are "bonded" together with an open-end connection and are not insulated; 

there is not anything to keep the dust from getting on them. (Tr. 217.) According to Fletcher, 

when dust accumulates on the connections, "carbon tracking" results, causing a "very violent arc 

flash, ... [and the box will] bum down." (Tr. 217-18.) However, he indicated that he does not 

recall "seeing any type of evidence of any past history of violent arc flashes on [the] box." (Tr. 

225.) 

· · ·Chapman, who accompanied the inspector, opined that any material in the box 

was not reasonably likely to become explosive because he did not see anything that would put 

float coal dust in suspension inside the box. (Tr. 248-49.) 

In evaluating the third element of Mathies, the likelihood of an injury-producing 

event, i.e. a fire, I note the absence of ignition sources. I take cognizance of the testimony of 

Fletcher regarding uninsulated connections or connectors within the box which could cause 

carbon tracking resulting in a short circuit and violent arcing and flashing, causing the box to 

bum. However,-there is not any evidence in the record that there was any carbon tracking on.any 

connection or-connector, nor is there evidencethat, in continued operations, carbon tracking . 

, would·result, especially to the extent of C(lusitig violent arcing. "'Indeed, there was not any 

evidence ofanyarcing or sparking or flashing within the box. Significantly, neither inspectors' 

testified that there was any dust in suspension, nor did they indicate the presence of any , 

conditions that would be likely to cause the float dust to go into suspension. ·Moreover;· it would : 

appear that the presence of gaskets on the door o:f the box would 'somewhat reduce somewhat the 

likelihood of the entry into the box of air of a velocity sufficient to cause the interior float dust to 

become suspended. Within the above context, I find that the third element of Mathies has not 

been established.4 

2. Penalty 

The Secretary has indicated that the citation was abated in a timely fashion. I find 

that should a fire have resulted, it could have caused bums or smoke inhalation. Accordingly, the 

level of gravity was moderate. There is not any evidence as to the length of time the violative 

conditions had exist~ nor was evidence adduced regarding the last time prior to Workman's 

observations that the interior of the box was actually inspected. Workman opined that the 

accumulations existed more than a week because the box had "sealed lids on it." (Tr. 182.) I find 

4

1 take cognizance of Bob and Tom Coal Co., 16 FMSHRC 1974 (Sept. 1994) (ALJ) and 

Beech Fork Processing Inc., 13 FMSHRC 576 (Apr. 1991) (ALJ). These cases were decided by 

fellow Commission judges and are not binding. To the extent that they are not consistent with 

the above decision, I choose not to follow them. 

31 FMSHRC 1484 
his opinion somewhat speculative. I thus find that the level of negligence was less than 

moderate. Taking to account all the remaining factors set forth in Section 11 O(i) of the Act as set 

forth above, supra Section I, I find that a penalty of $450 is appropriate. 

ORDER 

It is Ordered tfiat, within 30 days of this decision, Respondent shall pay a total civil 

penalty of$1,700 for the violations found herein . 

.. /(J L--- ~eisberger Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Stre.et, 

Suite 230, Nashville, TN 37219-2456 

Vicki Mullins, Conference Litigation Representative, District 6, District Office, 100 Faye 

Ramsey Lane, Pikeville, KY 41501 

Carol Ann Marunich, Esq., and Sara Ghiz Koran, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts 

Blvd., Suite 310, Morgantown, WV 26501 

/Ip 

31 FMSHRC 1485 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OHIO COUNTY COAL COMP ANY, 

Respondent 

December 31, 2009 

CNIL PENALTY PROCEEDINGS 

Docket No. KENT 2007-318 

A. C. No. 15-17587-118112-01 

Docket No. KENT 2007-319 

A. C. No. 15-17587-118112-02 

Docket No. KENT 2007-344 · 

A. C. No. 15-17587-119033-01 

Docket No. KENT 2007-345 

A. C. No. 15-17587-119033-02 

Freedom Mine 

DECISION 

Appearances: Mary Sue. Taylor, Esq., Office of the Solicitor, U.S. Departlllent of Labor, 

Nashville, Tennessee, on behalf of the Secretar)r of Labor; 

Melissa M. Robinson, Esq., William B. King, II, Esq., Jackson Kelly, PLLC, 

Charleston,.West Virginia, on behalf of Ohio County Coal Company. 

Before: Judge Zielinski 

These cases are before me on Petitions for Assessment of Civil Penalties filed by the 

Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815. The Petitions allege that Ohio County Coal Company is liable for eleven 

violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and 

propose the imposition of civil penalties in the total amount of$7,610.00. A hearing was held in 

Evansville, Indiana, and the parties filed briefs after receipt of the transcript. At the 

commencement of the hearing, the parties moved for approval of a settlement agreement 

resolving six of the alleged violations. The Secretary agreed to vacate two citations and 

Respondent agreed to withdraw its contest of four citations and to pay the assessed penalties in 

full. That proposed settlement will be approved herein. For the reasons set forth below, I find 

that Ohio County committed four of the five remaining violations, and impose civil penalties in 

the total amount of $3,350.00. 

31 FMSHRC 1486 
Findings of Pact - Conclusion,s of Law 

From November 2006 through April 2007, the Secretary's Mine Safety and Health 

Adniinistration conducted inspections of Ohio County's Freedom Mine, located in Henderson 

County, Kentucky. The eleven citations at issue in these cases were issued during those 

inspections. Ohio County timely contested the violations and assessed civil penalties. 

Citation No. 6692124 

Citation No. 6692124 was issued by MSHA inspector Anthony Fazzolare on 

November 28, 2006. It alleges a violation of 30 C.F.R. § 75.202(a), which requires that coal 

mine roofs, faces and ribs, i:ri. areas where persons work or travel, be supported or otherwise 

controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock 

outbursts. 

The violation was described in the "Condition and Practice" section of the Citation as 

follows: 1 

Located at the XC 34 just inby the "2A" Belt tail there were 8 damaged roof bolts. 

These roof bolts have had draw rock fall from around them exposing areas of 

unsupported top meastiring approximately 13_ -feet~ 7 inches by 6 feet 6 inches or 

4 7.5 square feet. Another area measured approxiD:iately 15 feet by 10 feet, or 150 

square feet. A breaker/feeder had been sitting in this spot and was just moved to 

the "2B" belt tail last shift. Failure to identify and qorrect this condition indicates 

a higher than moderate degree of negllg~nce on the operator'~ part. Any miners 

woiking in this area could easily be hit by falling rock. 

Ex. G-9. 

Fazzolare determined that it was reasonably likely that the violation would result in a lost 

work days or restricted .duty injury, that the violation was significant and substantial ("S&S''), 

that one person was affected, and that the operator's negligence was high. A specially assessed 

civil penalty in the amount of $4,100.00 was proposed for this violation. 

The Violation 

As noted in the citation, the area in question was located in or near a crosscut, just inby 

the tailpiece of the 2-A belt. The citation was issued at 9:45 a.m. On the previous midnight 

shift, a feeder that had been at that location was moved about 240 feet onto a new beltline 

designated 2-B. That belt was at a right angle to the 2-A belt and dumped coal onto it. The 

1 Grammar and spelling errors have been corrected in quotations from documents 

prepared in the field. 

31 FMSHRC 1487 
feeder was a Stamler BF 17, a very large piece of equipment, approximately 40 feet long and 14 

to 16 feet wide, weighing about 40 tons. Iris a relatively tall piece of equipment, which makes it 

difficult to position properly in the Freedom mine, where the coal seam is only 42-48 inches 

high. Tr. 242-43. Walter Wood, Ohio County's maintenance manager, traveled with Fazzolare · 

on the inspection and confirmed the observations noted in the Citation. 

Ohio County does not contest the fact of violation. It argues that the violation was not 

S&S and that its negligence was less than moderate, and requests a corresponding reduction in 

the assessed penalty. 

Significant and Substantial 

An S&S violation is described in section 104( d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

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

contributed to will result !fl an injury or illness of a reasonably serious nature." Cement Div., 

Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

· The Commission has explained that: 

. ' 

In order to establish that a violation of a·maiidatofy safety standard is 

significant and substantial under NationaLGypsum, the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory safety s.tandard; (2) a discrete. 

safety hazard--that is, a measure of danger tO safety--contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in 

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

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) 

(approving Mathies criteria). 

fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect ofa hazard that must be significant and substantial. U.S .. Steel 

31 FMSHRC 1488 
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of"continued normal mining operations." U.S. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

The fact of the violation has been established. A measure of danger to safety was 

contributed to by the failure to properly support the mine roof.2 An injury to a miner struck by 

material falling from the unsupported area would most likely be reasonably serious. Therefore, 

the primary issue in the S&S analysis is whether the violation was reasonably likely to result in 

an injury causing event. 

The area in question was located where the belt line made a 90 degree tum. Prior to the 

feeder move, miners had used the area as a regular travelway. However, a new route had been 

created, and it was no long~ used for that purpose. Tr. 240. Persons were required to be in the 

area approximately three times per day. Belt examinations were done on each of two production 

shifts, and an on-shift examination was conducted on the third shift. Tr. 83-84, 257, 263, 266. 

The likelihood of an injury producing' event must be evaluated by considering the 

likelihood of two· specific events occurring? simultaneously, a rock or other material falling from 

·the roof and the presence of a miner directly underneath it. The frequency with which rocks, . 

·sufficient to cause-a reasonably serious injury;·wouldfall from.the-inadequately supported ai:ea is 

unknown and unpredictable. There is no evidence that any0

material fell from the area while the 

inspection party was present. Persons passed through the: area three times per day, although not 

necessarily under the inadequately supported roof. Fazzolare did not know for certain whether 

persons would travel under it. Tr. 83. Belt examiners traveled on one side of the belt, and could 

conduct their examinations without going into the area of danger. Tr, 83, 258. Moreover, it is 

likely that an examiner would have noticed the problem and avoided exposure to the 

inadequately supported roof. As Wood noted, "that's their job," and they should have seen and 

corrected the problem, "like we did." Tr. 257. Because of the uncertainty of potential rock falls, 

and the fact that those potentially exposed to the hazard were trained examiners who were in the 

area infrequently and should have observed and avoided the hazard, I find that the occurrence of 

an injury causing event was unlikely. 

The Commission and courts have observed that the opinion of an experienced MSHA · 

inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 

2 As with Citation No. 6692129, Ohio County contends that fully grouted bolts 

continued to support the immediate roof in the absence of support plates. That contention is 

rejected. See the discussion, infra. 

31 FMSHRC 1489 
(7th Cir. 1995). Fazzolare certainly qualifies as an experienced MSHA inspector. However, 

while it is possible that a miner could have been injured as a result of the violation, I find that the 

Secretary has failed to prove that it was reasonably likely that an injury causing event would 

occur, as opposed to could occur. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) 

(to prove S&S nature of violation, Secretary must prove that it is reasonably likely that an injury 

producing event will occur, not that one could occur). Accordingly, I find that the violation was 

notS&S. 

Negligence· 

Fazzolare determined that Respondent's negligence was high because he believed that the 

condition existed prior to the move of the feeder, and should have been discovered during the 

preshift examination done before the third-shift crew started to work. Tr. 74-75. Ohio County 

contends its negligence was no more than low, because the damage occurred during the move of 

the feeder, and there had been no intervening examination. Fazzolare disagreed, because the 

damage to the roof was in a location consistent with it having been caused by ram cars, and 

believed that those movirtg the feeder would have known of any damage caused during the move. 

I find Fazzolare' s testimony more persuasive. From his experience, he believed that the 

damage had been caused by ram cars striking the mine roof while loading coal onto the feeder. 

Tr. 6J:66; 74-75, 92. As he described it, ram cars would ride up:on spilled coal as they backed' , 

up tothe feeder's loading platform (referred to as the ~'dttckbill'.);.and the tail of the car would hit 

the mine roof. Tr. 63-64. Wood confirmed that there is "inherently a lot of spillage'~ in the 

loading process. Tr. 250. The damage would have been done.Gin production shifts and would .. ·· 

have~existed before the start of the non-production third shift; during which the feeder was •.. :. 

moved. Fazzolare· also believed that the location, nature and extent of the damage was consistent· 

with damage caused by ram cars in the loading process. 

Wood testified that the damage could ''very easily" have occurred during the feeder move. 

Tr. 243. As Wood described the procedure, the feeder would first be trammed back away from 

the belt. The part of the feeder that dumped onto the belt would often be up against the mine 

roof, and would scrape the roof as it was trammed back. Tr. 244-45, 274-75. He stated that the 

damaged bolts were not actually in the crosscut, where the ram cars loaded, but were between 

coal pillars, where the feeder could have scraped the roof as it was trammed back. Tr. 254. 

Fazzolare testified that the damage was extensive, and was located in the crosscut, where 

the ram cars would have dumped coal. Tr. 60, 74-75, 92. While his recollection of events on the 

day of the inspection was, admittedly, ''vague," he had recorded in his contemporaneous field 

notes that the location of the roof damage .was in the crosscut, which was consistent with his 

theory of causation. Tr. 56; ex. G-10. I find that the location of the inadequately supported roof 

was in the crosscut, where ram cars had loaded. The extensiveness of the damage also supports 

Fazzolare's version of events. He testified that, if the damage had been caused during the move 

of the feeder, it would not have been as extensive. Tr. 74-76, 92. Wood testified that the feeder 

31FMSHRC1490 
would be trammed back away from the belt only for a short distance, i.e., 18 to 20 inches, then 

lowered to facilitate the move. Tr. 274, Once lowered, Wood did not believe that further contact 

with the roof would be likely. Tr. 275. Wood's explanation of the cause of the damage is 

inconsistent with the extensiveness of the damaged area. 

I find that the damage to the bolts had been caused prior to the feeder move, and should 

have been discovered during the preshi:ft examination for the prior shift. Accordingly, I :fiiid that 

Ohio County's negligence was properly assessed as high. 

Citation No. 6692129 

· Citation No. 6692129 was issued by Fazzolare on December 7, 2006. It also alleges a 

violation of30 C.F.R. § 75.202(a). The violation was described in the "Condition and Practice" 

section of the Citation as follows: 

Draw rock had fallen from around the permanent roof support on the haul road for 

MMU 001-0 exposing unsupported top measuring approximately 10 feet by 8 

feet, or 80 square feet. A vehicle had traveled under the unsupported top. 

;. 

Ex.·G-U. : .,·· ..• :1· . 

" 

Fazzolare detennined that it was reasonably likely,that the. violation would reslllt in a lost . 

work days or restricted duty injury, that the violation was s&S, that one·person was affected; and_,, 

that the operator's negligence was moderate; A civil penalty.in the anrount of$838.00 was 

·proposed for this violation. .. · 

The Violation - S&S 

_ This violation also involves an area of inadequately supported mine roof. As with the 

previous Citation, Ohio County does not challenge the fact of the violation. It disputes the 

Secretary's S&S and negligence allegations. The S&S analysis involves the same considerations 

as the preceding citation. There, because only trained mine examiners might encounter the 

hazard, and any exposure would have been infrequent, the violation was determined to be not 

S&S. However, the area in question here was located on a haul road, an area :frequently traveled 

by rank and file miners. Tr. 97. Several types of vehicles traveled the road, some of which did 

not have canopies to protect the operators from falling rocks. Tr. 96-97. Material had fallen 

from around one bolt and loosened the plate, creating an area of inadequately supported roof 

approximately 8 feet by 10 feet. Tr.· 194. At least one vehicle had traveled under the 

inadequately supported roof area Tr. 95. These facts substantially alter the outcome of the S&S 

analysis. 

Ohio County argues that the subject area was to the side of the entry, and that the grouted 

bolt still retained most of its holding power, making the fall of additional material, and an injury 

31FMSHRC1491 
causing event, unlikely. Fazzolare did not dispute that the bolts retained some support for the 

main roof. His concern was the "immediate" mine roof> where draw rock could become loose 

due to the effects of being exposed to the mine atmosphere, particularly drying during the winter 

season. Tr. 99-100. Plates held against the roof by the bolts provide the primary support for the 

immediate roof. I find his testimony more credible. The bolt's grouting did not substantially 

protect against falls of draw rock from the immediate roof, which was a recurrent problem at the 

Freedom mine. Tr. 2Q-2-03. At this location, even the plate had not provided sufficient support, 

because draw rock had fallen from close to the bolt, loosening the plate. While the inadequately 

supported area may have been more to the side of the entry, it extended almost to the mid-point, 

and vehicles using the haul road could travel under it. Charles Travis, the Freedom Mine safety 

manager, acknowledged that there were some vehicle tracks over to the side of the entry. _Tr 199. 

As noted in the citation, at least one vehicle had traveled under the inadequately supported atea. · 

I find that, as to this citation, the Secretary has carried her burden of proof, and that the 

occurrence of an injury producing event was reasonably likely. The violation was S&S. 

Negligence 

.Fazzolare determined that Ohio County's negligence was moderate based on an 

assessment that the condition had existed for at least one shift .. However, a8ide from that entry in 

his notes, he did not recall what formed the basis of that conclu.Sion. Tr. 98 .. He did not know· 

when the rock had fallen; or when a vehicle had traveled in the area. Tr. 109" AB to-the·vehicle 

· that had traveled the· area, he admitted that the operator may have been an hourly person; and not 

realized that the condition existed. Tr. 107-08. · In light of these concessions, I find Ohio· 

. County's negligence to have been low. 

Citation No. 6692130 

Citation No. 6692130 was issued by Fazzolare on December 7, 2006. It alleges a 

violation of 30 C.F.R. § 75.517, which requires that power wires and cables be insulated 

adequately and fully protected. 

The violation was described in the "Condition and Practice" section of the Citation as 

follows: 

The energized 995-volt trailing cable for the Joy 14/15 Continuous Miner, 

Co. No. M-13, located in MMU 001-0, was not adequately insulated. Upon close 

inspection, with the power locked and tagged, the inner wires of the cable could 

be seen. Continued dragging of this cable across the mine floor will eventually 

bare these inner wires and expose a potential shocking hazard. 

Ex. G-12. 

31 FMSHRC 1492 
Fazzolare determined that it was reasonably likely that the violation would result in a lost 

work days or restricted duty injury, that the violation was S&S, that one person was affected, and 

that the operator's negligence was moderate. A civil penalty in the amount of$838.00 was 

proposed for this violation. 

The Violation 

The rubber-coated cable supplying 995-volt electrical power to the continuous miner runs 

from the miner, along the rib of the entry, to a power center. It consists of two power leads, two 

ground wires, and a monitor wire. It is also shielded, i.e., the cover includes a conductive layer 

that is designed to pick up any electric current leaking from the inner leads. and cut off pe>.wer to 

the cable through a ground fault system. Tr. 214. On the day in question, Fazzolare examined a 

spot on the cable where it had been spliced. The tape covering the splice had been ''roughed up." 

Tr. 213~ He examined it closely, bending and manipulating it, and was able to see the inner 

leads. Tr. 213. After the power had been cut off, the splice tape was cut away. The inner leads 

were intact and remained insulated, and the cable's shielding was also intact. Tr. 218. 

While Ohio County argues that there was no defect in the cable before Fazzolare 

examined it, it does not challenge the fact of violation, but argues that the violation was notS&S · 

·:and that its·negligence was less than moderate, and requests a corresponding reduction in the 

a8ses'sed penalty. '' • .•• ,)o. . ' ~ . :':!: 

s&s .. 

. . 

Fazzolare believed that a miner could receive an electrical shock by handling. the 

•deteriorating splice in -the cable. Tr. 117, 132. He did not dispute the fact that the insulation on 

the electrical conductors was intact, such that the splice did not present a shock hazard atthe tim:e 

of the inspection. His concern was that, with continued dragging of the cable along the mine 

floor, the opening would become larger allowing small rocks to enter, "eventually'' wearing away 

the insulation of the inner leads "if not caught." Tr. 122, 129. The presence of the shielding and 

monitor wires did not alter his analysis, because he cited a recent example where a miner was 

injured handling an electrical cable by current that was below the threshold of the ground fault 

system. Tr. 125-26. 

Travis, who traveled with Fazzolare, testified that the opening in the splice tape was 

extremely small, and would not have been perceived as a problem by most observers. Tr. 219-

20. The shielding and insulation of the conductors was intact, and the violation was abated 

simply byre-taping the splice. Tr. 221. He agreed that the splice could deteriorate if not 

properly cared for, but noted that splices are checked on a regular basis and re-taped if necessary. 

Tr. 228-29. He also explained that miners are trained to not handle cables at splices when the 

cable is energized. Tr. 218. Cables are checked weekly, and miner operators examine them 

before operating the equipment. Tr. 126-27, 219-20. He also noted that the continuous miner 

31 FMSHRC 1493 
operates at 995 volts, which is classified as "low voltage," and that miners wear gloves, although 

he conceded that the gloves were not insulated to provide protection from electrical shock. 

Tr. 23. 

A cable splice that has been allowed to deteriorate to the point that electrical conductors 

are exposed would present a serious shock hazard. While classified as "low," the voltage was 

more than ·adequate to-cause a serious or fatal injury. Neither the miners' work gloves, which 

were not insulated, nor the shielding system, would assure that no injury occurred. However, the 

condition cited was not hazardous at the time. According to Fazzolare, it could have become 

hazardous "eventually," "if not caught." There is no evidence as to the length of time that would 

have had to-elapse before the condition became hazardous. At the time of the inspection, the 

splice was located some distance from the continuous miner, whete the cable would have been 

handled less frequently. Tr. 221. Before the condition could result in an injury, it would have 

had to undergo multiple pre-operational examinations and weekly inspections, and not been 

identified as a problem in need of correction, and a miner would have had to ignore his training 

and handled the energized cable at the splice. 

Considering all of these factors, I find that the Secretary has not proven that the violation 

was reasonably likely to have resulted in an injury producing event, and that the violation was not 

. s&s.· 

· · · Negligence 

Travis testified that the tape ofthe splice was roughed·up in spots, not ·~ery pretty;" and• 

doubted "that anybody would have ever seen any problem with this." Tr. 219-20. Fazzolare · 

conceded:that the condition was "not very obvious," and was observable only on "close 

inspection." Tr. 126. I find that Ohio County's negligence was low. 

Citation No. 6692131 

Citation No. 6692131 was issued by Fazzolare on December 7, 2006. It alleges a 

violation of30 C.F.R. § 75.503, which requires that electric powered equipment that is taken into 

or used inby the last open crosscut be maintained in permissible condition. The violation was 

described in the "Condition and Practice" section of the Citation as follows: 

The operator failed to maintain the Fletcher Double Boom Roof Bolter in a 

permissible condition. When checked, the right front light had a loose packing 

gland where the cable enters the light fixture. 

Ex.G-13. 

Fazzolare determined that it was unlikely that the violation would result in a lost work 

days or restricted duty injury, that the violation was not S&S, that one person was affected, and 

31FMSHRC1494 
that the operator's negligence was moderate. A civil penalty in the amount of$60.00 was 

proposed for this violation. · 

The Violation 

Maintaining permissibility of electric-powered equipment inby the last open crosscut is 

critical to assuring that-sparks or arcing from electrical components cannot cause an ignition or 

explosion of methane liberated by the mining process. The permissibility of housings of 

electrical components is typically determined by measuring to assure that openings are no greater 

than 0.004 of an inch. Inspectors probe openings in joints with a 0.005-inch feeler gauge and 

determine that permissibility is intact if the feeler gauge cannot be inserted. Tr. 141. 

The wires that supply electricity to the lights on the roof bolter are encased in rigid 

conduit that is connected to an elbow joint that is, in tum, connected to the lamp housing. The 

connection to the housing is sealed by a packing gland in which a rubber grommet is 

encapsulated. Screwing down the top of packing gland compresses the grommet, forcing it to 

expand, sealing any openings. Tr. 139, 279. When properly compressed, the flexibility of the 

rubber grommet allows some movement of the lamp housing. Tr. 280. Previous fittings were 

similar in design, except that :fiberglass rope was used instead of rubber. More force was needed . 

to compress the rope. Consequently, the cap was screwed tighter; and the connection was rigid. 

Tr.280-8L 

The permissibility of the packing gland joint cannot be measured with a feeler gauge, :and· 

no· other objective test for determining the permissibility of such fittings in the field wa& . , . 

· · identified. Tt~ 141, 287. Fazzolare did notattemptto measure the:suspected opening. Tr. 145. . 

He assesses permissibility by trying to. move the lamp. Ifhe can "tock it by hand," in his . · · · · 

opinion, it is too loose, and he deems the joint non-permissible. Tr. 140. Wood testified that the 

newer rubber grommet packing glands allow movement of the lamp housing when the grommet 

is properly compressed, and that an over-tightened packing gland may result in a violation. 

Tr. 280-81. 

Fazzolare testified that, in his experience, ifthe fitting was ''that loose," there would be at 

least a 0.005-inch gap. Tr. 146. However, he did not explain the basis of that conclusion, and it 

is unlikely that it was the product of accurate measurements. More significantly, he admitted that 

he had no way of knowing whether the joint was actually sealed. Tr. 147. I find that the 

Secretary has failed to prove by a preponderance of the evidence that the packing gland joint had 

not been maintained in permissible condition. The Citation will be vacated. 

31FMSHRC1495 
·' 

Citation No. 6692601 

Citation No. 6692601 was issued by MSHA inspector Charles Jones on April 10, 2007. 

It alleges a violation of 30 C.F.R. § 75.l 107-16(b), which requires that fire suppression devices 

be maintained in accordance with requirements specified in the appropriate National Fire Code. 

The violation was described in the "Condition and Practice" section of the Citation as follows: 

The take-up motor, electrical components and oil tank at the #5 belt drive were 

not provided with adequate fire suppression. The fire suppression water spray 

nozzle and piping had fallen down and were lying beside the motor on the mine 

floor. 

Ex. G-1. 

Jones determined that it was reasonably likely that the violation would result in a lost 

work days or restricted duty injury, that the violation was S&S, that one person was affected, and 

that the operator's negligc;nce was moderate. A civil penalty in the amount of $217.00 was 

proposed for this violation. 

:rhe Violation ·. -~-

The motor, electrical components, and hydraulic oil tank for the #S belt drive takeup unit 

were located in a crosscut adjacent to the belt entry, out of the main ventilation air cUlTent that 

flowed outby in the entry. The water spray nozzl~ was part of the belt drive fire suppression , .. 

·system, and was -supposed to be suspended over .the equipment in the crosscut. . Heat .generated 

· by a fire would melt a plastic plug, allowing· water to flow through the spray nozzle; The hazard . 

contributed to by the violation was that a fire starting in the area of the motor would not be 

suppressed timely, would generate increased smoke and other products of combustion, and could 

spread to the main belt drive. The belt drive and the takeup unit, including 50 feet of the belt, 

were protected by a deluge water system, the components of which were in good working order. 

Ohio County admits that the fire suppression nozzle had fallen to the mine floor and was 

not properly maintained at the time of the inspection. It argues that the violation was not S&S 

and that its negligence was less than moderate, and requests a corresponding reduction in the 

assessed penalty. 

S&S 

The Secretary contends that the violation was S&S because the "condition was likely to 

result in smoke inhalation or burn injuries as a result of a mine fire at [that] location." Sec'y. 

Br. at 12. Jones' S&S determination was based on a number of considerations, including that the 

nozzle would be ineffective in suppressing a fire, that notice of the fire would be delayed because 

of the location of the equipment, and that firefighting efforts would be delayed because of 

31 FMSHRC 1496 
difficulty ascertaining the location of the takeup motor from the secondary escapeway. Ohio 

County disputes those contentions, and argues that it· was highly unlikely that a fire would occur 

at the takeup motor and, if a fire did occur, it was highly unlikely that a miner would be injured. 

As to the possibility of a fire occurring at the takeup motor, Jones identified potential 

ignition sources as a possible arc from the electrical equipment and friction generated by the 

takeup unit. 3 However,he did not identify any defects in the electrical equipment. Nor did he 

identify any defects in the takeup unit resulting in the generation of excessive heat due to friction. 

Concerns about friction at the takeup unit, which was located in the belt entry and was protected 

by the deluge system, bear little relevance to the seriousness of the condition at the equipment in 

question. He noted the close proximity of hydraulic fluid, but did not cite any leaks in the 

system, and conceded that the hydraulic fluid was an emulsion consisting of 40% water, which 

''would burn," but was "fire resistant." Tr. 38, 43. Travis explained that MSHA's mine safety 

and data sheet does not list a flash pointfor the fluid because it is 40% water. Tr. 156. 

The history of fires at the Freedom mine tends to indicate that the likelihood of a fire 

occurring in the area of the _takeup motor was remote~ Jones was not aware of any fire occurring 

at the Freedom mine, and Travis was unaware of any belt fires at the Freedom mine. Tr. 50, 164. 

However, Wood, confirmed that a belt fire had occurred, apparently many years before, andwas 

extinguished quickly enough that it was not reportable to MSHA.4 Tr. 289. 

The fallen.hozzle did not provide effective fire suppression. Lying on the mine floor, the 

plastic plug would not be exposed· to significant heat from. a· fire until it had reached large 

proportions, and the spray would nolcover the iniended·area. .However, in the absence of 

anything more than a theoretical ignition source, :I find that the gccurrence: of a fire at the takeup 

motor was unlikely. Moreover~ other factors reliecl on by Jones to support his conclusion were 

not substantiated. The mine's fire suppression system would have provided effective and timely 

warning of a fire at the takeup motor, and the unmarked man doors would not have caused any 

3 The Secretary cites several additional potential ignition sources. Sec'y. Br. at 12. 

However, those sources were considerably removed from the equipment in question. Jn order for 

the fallen nozzle to have had any impact on a fire originating some distance from the equipment, 

it would have had to spread over a considerable area. and would have activated the nearby deluge 

system. The fallen nozzle would have had a negligible impact, if any, on the hazards presented 

by such a fire. 

4 Unplanned fires in underground mines that are not extinguished within 10 minutes of 

being discovered must be reported to MSHA. 30 C.F.R. §§ 50.2(h)(6), 50.10, 50.20. The 

regulation was amended in 2006 to shorten the time period from 30 to 10 minutes. 

31FMSHRC1497 
significant delay in responding to a fire.5 . Consequently, .I find that even if a fire had occurred at 

the takeup motor, it is unlikely that a seiious injury would have resulted. 

I find that the Secretary has failed to carry her burden of proving that the violation was 

reasonably likely to result in a reasonably serious injury. Consequently, the violation was not 

S&S. 

Negligence 

Jones evaluated Ohio County's negligence as moderate. He believed that the condition 

had existed for "a while," because there was rock dust and float coal dust on the nozzle, and that 

it should have been discovered and corrected in conjunction with belt examinations required to 

be conducted on the two shifts each day that production occurred at the Freedom mine. Tr. 28-

31. Ohio County contends that the condition was not readily observable, and that there is no 

evidence that the condition had existed for any length of time, much less that it had existed long 

enough to have been discovered during an examination that had occurred at least two shifts 

earlier. It challenges Jonc;,s' testimony on the presence of rock dust and float coal dust on the 

nozzle, pointing out that it was contradicted by Travis, and that there is nothing in Jones' field 

notes regarding the presence of dust at that location. Tr. 189-92 

The nozzle was lying on the mine floor near the takeup motor. Belt examiners traveled 

on the opposite side of the belt. While it may'have been more difficult to see from that vantage 

point, it-should have been seen in the course of an examination. ldo not understand Ohio 

County to be contending that it is not part of a belt. examiner's duties to confirm the presence ·of 

essential· fire suppression equipment. Travis agreed· that a fallen·fire,suppression hose should 

have been'noted bya preshift examiner. ·.Tr; 177. As to the- presence of dust, I credit Jones' 

testimony~ and find that there was some rock dust and float coal dust on the fallen nozzle, and 

that it had been in that condition long enough that it should have been discovered. I find that 

Ohio County's negligence with respect to this violation was properly assessed as moderate. 

5 Freedom's carbon monoxide monitoring and fire suppression systems were in working 

order. The CO monitors are set to alarm at five parts per million, a very low threshold level, and 

a monitor was located nearby, downstream in the 245 foot-per-minute air flow. While there 

would have been less air flow in the crosscut where the equipment was located, some significant 

air flow would be required to supply oxygen to a fire, and the products of combustion would 

have been forced or drawn out into the belt entry's air flow, triggering the alarm. Freedom's 

miners and managers were properly trained to fight fires. A fire fighter approaching from inby 

would travel the belt entry, in its outby air flow of fresh air. Approach from outby would be 

through the intake entry, inby the fire, and into the belt entry through a man door. While the man 

doors to the belt entry were not marked, Travis explained that the location of the takeup unit was 

well known and readily identifiable, because the entries turned 45 degrees at that point, the only 

such tum in the mine. Tr. 160. 

31 FMSHRC 1498 
The Appropriate Civil Penalties 

Ohio County is a very large operator, with a very large controlling entity. The assessment 

data reflects that, prior to an apparent change in organizational structure in 2007, it averaged 1.5-

l.6 violations per inspection day during the relevant period, a relatively high incidence of 

violations. Ohio County does not contend that payment of the proposed penalty will affect its 

ability to continue in business. The violations were promptly abated. 

Citation No. 6692124 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. A specially assessed civil penalty of 

$4,100.00 was proposed by the Secretary. The lowering of the level of gravity justifies a 

reduction in the proposed penalty. I impose a penalty in the amount of$2,500.00, upon 

consideration of the above and the factors enumerated in section.1 lO(i) of the Act. . 

Citation No. 6692129 is affirmed. However, Ohio County's negligence was found to be 

low, rather than moderate. A civil penalty of $838.00 was proposed by the Secretary. The . 

lowering of the level of negligence justifies a reduction in the proposed penalty. Informed by the 

Secretary's then applicable penalty assessment regulations, I impose a penalty in the amount of 

$375.00, upon consideration of the above.and the factors enumerated in section l lO(i) of the Act. 

Citation No. 6692130 is affirmed. However,.the violation was not S&S and Ohio 

County's negligence was found to be low,'rather than· moderate. A civil penalty of $838.00 was 

· proposed by the Secretary. The lowering of the gravity of the violation and the operator's level 

. ·of negligence justify a reduction in the proposed penalty. I.impose a penalty in the amount of 

$300.00, upon consideration of the above andthefactorsenumerated..in section l lO(i) of the Act. 

·. \. .... ;., . 

Citation No. 6692601 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. A civilpenalty of $217 .00 was 

proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the 

proposed penalty.· I impose a penalty in the amount of $175.00, upon consideration of the above 

and the factors eniimerated in section llO(i) of the Act. 

The Settlement 

The Secretary agreed to vacate Citation Nos. 6692627 and 6692628 in Docket No. KENT 

2007-344. Ohio County agreed to withdraw its contest and pay the assessed penalties as to 

Citation No. 6689987 in Docket No. KENT 2007-319, Citation No. 6692605 in Docket No. 

KENT 2007-344, and Citation Nos. 6692620 and 6692622 in Docket No. KENT 2007-345. 

I have considered the representations and evidence submitted and conclude that the proffered 

settlement is appropriate under the criteria set forth in section 11 O(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that, as to Citation Nos. 6692627 and 6692628 the petition in Docket No. KENT 

31FMSHRC1499 
2007-344 is hereby DISMISSED, and that Respondent pay a penalty of $1,357 .00 for the 

citations that are the subject of the settlement agreement. 

ORDER 

Citation No. 6692131 is VACATED. Citation Nos. 6692124, 6692129, 6692130 and 

6692601 are AFFIRMED, as modified, and Respondent is ORDERED to pay civil penalties in 

the total amount of $3,350.00 for the contested violations. 

Respondent shall pay civil penalties in the total amount of $4, 707 .00 for the settled and 

contested violations within 30 days. 

"nski 

.~.nuu; Sffative Law lud~ 

'· ~ ' .. 

· .. Distribution (Certified Mail): 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Melissa M. Robinson, Esq., Julia K. Shreve, Esq., William B. King, II, Esq., Jackson Kelly, 

PLLC, P.O. Box 553, Charleston, WV 25322 

31 FMSHRC 1500 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

72119th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

December 31, 2009 

SECRETARY OF LABOR, 

MINE SAFETY ANDHEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2008-667 

A.C. No. 01-03217-146922 

v. 

SHELBY MINING COMPANY, LLC, 

Respondent Mine: Coke Mine No. 1 

Appearances: 

Before: 

DECISION 

Tom Grooms, Office of the Solicitor, U.S. Department of Labor, : 

Nashville Tennessee, for Petitioner; · 

Warren B. Lightfoot, Maynard, Cooper and Gale; PC Birmingham, 

Alabama, for Respondent. 

, Judge Miller , 

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

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

against Shelby Mining Company, LLC, pursuant to sections 105 and 1 IO of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 {the ''Mine Act" or the "Act"). This 

case involves one citation and one order issued by MSHA under section 104( d) of the Mine Act 

at the Coke Mine No. 1 operated by Shelby Mining Company, LLC. The parties presented 

testimony and documentary evidence at a hearing held in Birmingham, Alabama. 

At all pertinent times, Shelby Mining Company, LLC, operated the Coke Mine No. 1 

mine in central Alabama. The Coke Mine No. 1 mine, although now closed, mined coal and/or 

coal byproducts which affected commerce. The mine is subject to the Mine Act. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Shelby Mining Company, LLC ("Shelby") operated an underground coal mine, the Coke 

Mine No. I ("Coke Mine"), near Montevallo, Alabama. Like most mines in the area, it is 

·"gassy," liberating over seven million cubic feet of methane per day. As a result, it is subject to 

5-day spot inspections by MSHA, pursuant to section 103(i) of the Act. 30 U.S.C. § 813(i); (Tr. 

31FMSHRC1501 
21-22). On November 27, 2007, Randall Weekly, an MSHAinspector, conducted a spot 

inspection at the Coke Mine. He was accompanied oti that inspection by Randy Clements, 

Shelby's safety supervisor at the mine. The inspection took place on the regular day shift, 

during which mining normally occurs. (Tr. 95-96). Weekly cited two violations that are 

subject to this decision: (1) a citation for failure to follow the ventilation plan, and (2) an order 

for failure to conduct an adequate preshift examination. 

a. Citation No. 7692075 

As a result of the inspection, Inspector Weekly issued Citation No. 7692075 alleging a 

violation of 30 C.F.R § 75.370(a)(l), which requires that mine operators "develop andfollow,a · 

ventilation plan approved by the [MSHA] district manager." The citation described the violation 

as follows: · 

At the Coke mine on the #1 section in the #5 entry the ventilation plan was not 

being followed. The entry had been mined a full cut of 30 feet, the blowing 

curtain was 12 feet from the last row ofbolts or 42 feet from the face,[ sic] There 

is no evidence of an exhaust curtain or back drop ever being in place while this 

area was mined. The air was μ"aveling through the cross cut,between #4 and #5 

then straight to the return never. goiμg to the faee. · This mine has had 6 ignitions·· 

from 3/30/2006 until 'll/~/2007' one resulting in 2 employe~s receiving bums. 

The nilne operator Jia8 engaged in aggravated. conduct by failure to follow the 

ventilation plan. This violation is aii unwarrantable failure to comply with a 

mandatory stand~d; · · · 

Gov.Ex.2. 

The citation was later modified to clarify that it was issued for a violation of item 7 on page 2 of 

Shelby's ventilation plan. Id. 

Weekly determined th.at it was "reasonably likely" th.at the violation would result in "lost 

workdays or restricted duty," th.at the violation was significant and substantial, that three 

employees were affected, and that the operator's negligence was high. A civil penalty in the 

amount of$2,473.00 has been proposed for this violation. 

1. The Violation · 

Weekly is an MSHA mine inspector who has held th.at position since 2005. (Tr. 19). 

Prior to joining MSHA he worked in the mines in Alabama for twenty-five years. He held a 

number of positions in the mining industry where he accrued a working knowledge of ventilation 

systems and ventilation controls. (Tr. 20-21). 

Weekly arrived at the Shelby Coke Mine during the day shift on November 27, 2007. At 

7:00 a.m. he left the surface to travel underground with Mr. Clements and the two arrived at the 

31 FMSHRC 1502 
#5 entry at approximately 9:00 a.m. (Tr. 32, 57). While production was the norm on the day 

shift, there was no activity at the #5 eriny when Weekly andClements arrived. {Tr. 22-24). 

Immediately upon arriving at the #5 entry, Weekly observed that a full cut of 30 feet had 

been made in that entry, but it had not yet been roof bolted. He observed that the line curtain 

outby the #5 entry had been pulled back 12 feet from the last row of bolts. He further observed 

that there was no exha~t curtain across the entry and air was short-circuiting directly to the 

return instead of traveling into the entry or face area. (Tr. 30). Clements confirmed Weekly's 

observations. (Tr. 112). 

The ventilation plan and the citation issued by Inspector Weekly refer to two curtains in 

the'ar~fofthe #5 entry that act as vei'J.tilation controls: (l) a ''blowing curtain," also known: asa 

"line curtain," and (2) an "exhaust curtain." 

The Coke Mine's ventilation plan requires that a "line curtain" be maintained ''no greater· 

than 30 feet from the point of deepest penetration in all unbolted idle working places." Gov. Ex. 

3at51 ?(emphasis added). {Tr. 26-28). According to Weekly, the line curtain was 12 feet 

from the last row of roof bolts and 42 feet from the face {i.e., more than 30 feet). Gov. Ex. 2. 

I credit Weekly's testimony and find·that the line c~ain was more than 30 feet from the 

.. point of deepest penetration and, fl1erefore, :w~ in yicilatio11 of the ventilation plan .. weekly. -

explained that the p{)sition of.tp.e _curtam prevented air from· reacbing the #5 entry, and instead of · 

reachiilg the face, caused the a.fr to short drcuit into the return. (Tr. 24). Clements agreed that 

the curtain was inby the rib in the crosscut and was 42 feet from the face. (Tr. 111-112). 

Clements was unable· to explain exactly why the line curtain had been pulled back or how long it 

had been in that position. · · · 

The mine's ventilation plan also requires that an "exhaust curtain" be maintained ''within 

30 feet of the face" while mining is occurring. Gov. Ex. 3 at 5 13; (Tr. 26-28). According to · 

Weekly, and confirmed by Clements, there was no exhaust curtain present when the inspection 

was conducted. (Tr. 114). Weekly determined that the area had recently been mined, most 

likely on the last production shift the evening prior to the inspection. Weekly testified that he 

looked carefully for any sign that a curtain had been hung in the area, specifically to determine if 

the curtain had been in place when the 30-foot cut had been made. He examined the roof and the 

bolts, and looked for evidence of nails or marks that would have indicated the previous presence 

of an exhaust curtain. (Tr. 69). He did not see the "pogo sticks" that are often used to hold the 

curtain in place, and he saw no material that could have been used as a curtain. {Tr. 68). Based 

on his observations, Weekly determined that an exhaust curtain had never been in place as 

required by the plan. (Tr. 38, 68-69). 

Clements, referencing the company production report, testified that on November 26, 

2007, coal was cut for 28 feet in the #5 entry. Resp. Ex. 9 at 3; {Tr. 121-122). However, the 

following morning, when the two arrived on the section, there was no activity. Shelby argues, 

therefore, that an exhaust curtain is·only required when miners are working at the face, and, at 

the time of the inspection, coal was not being mined in the area; hence no one was working at the 

face and no violation of the ventilation plan existed. 

31 FMSHRC 1503 
While no one was working at the face, there is credible testimony that there was work 

conducted in the area without the proper \reritilation. Weekly' s testimony that he made a careful 

search for any sign of the previous existence of an exhaust curtain in the area, and none could be 

found, demonstrates that no curtain was ever in the area, even while the work was being done on 

the prior shift. When it came time to abate the violation and hang the curtain, Clements was 

unable to locate one in the area of the #5 entry and had to travel to another area in the mine to 

retrieve a curtain and return it to the #5 entry to be hung as required by the plan. (Tr. 77). While 

coal was not being mined at the time of the inspection, there was no sign that an exhaust curtain 

had ever been in place. Because an exhaust curtain was never in place, and a cut had been made 

which would have necessitated miners working at the face, Shelby was in violation of its 

ventilation plan for the second time. See Gov. Ex. 3 at 5 iI 3. 

After the citation for the plan violation was issued, Clements conducted an internal 

investigation to determine why the ventilation plan was not being followed in the #5 entry. (Tr. 

129). He spoke to Jerry Wells, the foreman on the production shift on the evening prior to the 

inspection. Wells told Clements that he had observed a curtain in place; however, he could not 

confirm which curtain (i.e., line or exhaust) he saw during the production. (Tr. 119-120). Wells 

could not explain who removed the curtain after he left the area, why the curtain was removed, 

or when it was removed. He also could not address why or when the line curtain had been pulled 

back twelve feet in violation of the ventilation plan. Clements confirmed that he could learn 

noihing'further about the position of either curtain but he recalls that someone told him thatthey 

took down th'e exhaust curtain to. "scoop Up some nnick.~' (Tr. 123)~; There was no explanation : . 

about why the curtain had not simply been pulied aside or why it had not been returned when the. 

·clean up was complete. 

Shelby argues that the curtain had to be in place to make the cut in order for the 

continuous miner to operate. Clements reasoned that a cut could not be made without the 

ventilation controls in place because, without the air moving to the face, methane levels would 

rise and automatically shut down the continuous miner. He believes that the safety device on the 

machine would have prevented mining if proper ventilation were not in place. Wells agreed 

with Clements and confirmed that so much gas is emitted while the coal is being mined that it 

could not be done without ventilation in place. (Tr. 15). Therefore, Clements opined, the 

exhaust curtain had been in place during mining but was removed to clean the area, and 

therefore, was not a violation. Wells on the other hand explained that cleanup is done only after 

the roof is bolted because it is not safe to clean in an unbolted area, such as was the case in the 

#5 entry. (Tr. 155). Given the discrepancy in the testimony of Shelby's witnesses, I do not 

credit the theory advanced by Clements, that the curtain had been removed to clean. 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. Jn re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajfd sub 

nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO 

Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152 (Nov. 1989). The Secretary has met her burden of proving that the mine was not 

following its ventilation plan in two specific areas on the day of the inspection. 

31 FMSHRC 1504 
2. Significant and Substantial Violation 

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&,S "if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[In] order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (I) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard-- that is, a measure of danger to safety--contributed to by the violation; (3) 

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

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

serious nature. 

Mathies Coal Co>, 6 FMSHRC 1, 3.,.4 (Jan; 1984)(footnot~.omitted); see'also,'.Buck Creek.Coal~ 

Jnc.,v: MSHA, 52 F.3d 133, 135 (7th Cir. 1999); .14u$tinPower, Inc. v. Sei:retary, 861F2d99, 

103·04 (5th Cir:'.1988), ajfg Austin Power, Jizc.,,·9 ;FMSHRC 20i5, 2021(Dec.1987) (approving 

Mathies criteria). · · 

As noted above, I find that there is a violation of the mandatory safety standard: as alleged 

· by· the Secretary: Further, I find that the violation contributes to the danger of an explosion or 

ignition of methane at the #5 entry. In analyzing the hazard presented by methane, the critical 

question is whether there was any likelihood of explosive concentrations of methane coming into 

contact with an ignition source. See Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). 

Although Weekly was unable to go to the face of the #5 entry to take a methane level reading 

because the roof of the entry had not yet been supported, the condition clearly pointed to a 

buildup of methane in the working area. The ventilation had been short circuited in two regards, 

both with the pulled back curtain and the absence of the exhaust curtain, resulting in no air 

movement at the face. It would take little time for methane to build up to a dangerous level in 

that entry. The mine's history of ignitions, coupled with a build up of methane, clearly creates a 

hazard. 

The third element of the Mathies criteria often presents difficulties in determining 

whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 

1985), the Commission provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

31 FMSHRC 1505 
with the language of section 104( d)( 1 ), it is the contribution of a violation to the 

cause and effect of a hazard thaf must be signiffoartt and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in consideration of the length of time that the violative condition existed 

prior to the citation anjl the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

The length of time that the violative condition existed prior to the citation was 

significant. Weekly testified that, after a diligent search, he saw no evidence that an exhaust 

ventilation curtain had ever been in place at the #5 entry and therefore the condition had existed 

on the prior evening Shift, through the night shift and into the day until Weekly arrived. Wells, 

on the other hand, testified that he observed a curtain in place about twelve hours prior to the 

violation. I have credited-the testimony of Weekly that no exhaust curtain had ever been put in 

place, and that the violation existed the evening before the inspection, giving ample time for 

methane to build in the area. · 

Weekly· testified that he believed an injury,was reasonably likely to occur: He based this 

conclusion on his determination that.the #5 entry was an unventilated area where gas was being 

allowed to build up. Given his experience, and the direction of the air flow, he had no doubt that · 

the face had no air movement and hence, methane was building In that area~ {Tr. 40). T.he fact 

· · that this is a gassy mine with a history of ignitions, along.with the fact that roof bolting would · 

next occur in the area, made it reasonably likely that ·an ignition or explosion would occur in the 

unventilated area resulting in an injury. In the normal mining sequence~ the roof bolter would 

have been brought in to begin bolting the area so that mining could continue. Weekly explained 

that he is aware of a number of methane ignitions caused by roof bolters. (Tr. 41 ). When the 

bolter drills the hole in advance of placing the roof bolt, the hot bit can hit the methane that has 

not been carried away or hit a bleeder and ignite. This mine has many methane bleeders, and 

without ventilation in place the roof bolter would, not only ignite the methane that had 

accumulated without ventilation, but would be more likely to ignite the stream of gas from the 

bleeder, resulting in an explosion or at the very least a bum injury to those working in the area. 

A previous ignition at the mine which caused burn injuries to two miners substantiates the 

Secretary's argument that the injuries could be sustained and those injuries would be serious. 

Weekly indicated that three people were affected by the lack of ventilation. Gov. Ex. 2. 

He determined that two roof bolters and one service person who would be working the scoop 

would have been exposed to the condition he cited. Shelby agrees that roof bolters would have 

entered the area next to secure the roof, while the service man would operate the scoop to clean 

up. 

Shelby disputes the S&S designation and presented evidence that the continuous miner 

would automatically stop cutting and shut down if dangerous methane levels were present. 

31 FMSHRC 1506 
Therefore, Shelby argues, it is impossible to operate without air flow to the face. The argument 

was not extended to the roof bolting mac:hnies, however; that were scheduled to enter the area 

next in the normal course of mining. 

Shelby also argues that the previous ignitions in the mine occurred during the production 

shift and had nothing to do with ventilation curtains and therefore ignition is unlikely in this idle 

area. Clements testified that, normally, the continuous miner would hit an area with methane, 

causing the various ignitions that had been reported to occur. One of the ignitions was 

investigated by Weekly and he agreed that it was during a production shift and that the 

ventilation plan was being followed at the time of the ignition. (Tr. 46-48). However, without 

the ventilation in place, as it had been for the previous ignitions, it is even more likely that a 

hazard exists, as there is nothing to move the methane away from the source ofignition. 

Shelby's failure to comply with its approved ventilation plan resulted in extremely . 

haZardous conditions in locations where persons were scheduled to travel and work. Weekly 

said that the mine was "setting itself up to have another ignition." (Tr. 44). Any injury that 

might result from an ignition of methane or exposure to oxygen-deficient air would be serious, 

and potentially fatal. Therefore, I find it was reasonably likely that the hazard would result in an 

injury and that injury would be serious . 

. :3.' Unwarrantable Failure ··, .. · .. 

The tenn ''unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining .Corp., 9 FMSHRC 1997, 2004:(Dec. 1987). Unwarrantable 

failure is characterized by such conduct as ·~eckless:disregard," "iritentional misconduct;" 

"indifference,'' or the "serious lack of reasonable care;" Id. at2003-04; Rochester &Pittsburgh 

Coal Co:, 13 FMSHRC 189, 193-194 (Feb. 1991). Aggravating factors include the length of 

time that the violation has existed, the extent of the violative condition, whether the operator has 

been placed on notice that greater efforts were necessary for compliance, the operator's efforts in 

abating the violative condition, whether the violation was obvious or posed a high degree of 

danger and the operator's knowledge of the existence of the violation. See Consolidation Coal 

Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 

1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 

FMSHRC 588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must 

be examined to determine if an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353. 

In October 2006, the mine began to experience a number of ignitions at the face. Steps 

were taken by MSHA and Shelby to modify the ventilation plan as needed to prevent such 

ignitions. See Gov. Ex. 16. MSHA personnel were present at the mine for many days, and, with 

each new ignition, worked with Shelby to modify the ventilation system as needed. The 

ignitions were dangerous and, most importantly, occurred while ventilation was in place. With 

the history of ignitions, the presence of MSHA, the investigations and the ventilation changes, it 

is safe to say that everyone at the mine was aware of the methane problems. The ignitions were 

ongoing with at least four occurring between October and the time of the citation near the end of 

31 FMSHRC 1507 
,. 

•, 

November. Proper ventilation should have been a high,,i1riority for everyone at the mine, yet it 

appears that it was not. Government exhibits six through sixteen describe. the ignitions that were 

occurring regularly, and explain that in at least one case miners were seriously injured during an 

ignition. Gov. Exs. 6-16. 

The Secretary established that Shelby was on notice that it needed to do more to ensure 

that the faces were adequately ventilated at all times. However, the problem with ignitions 

persisted. Based on the evidence presented at the hearing, I conclude that the ventilation was 

restored to the cited #5 entry only after Weekly pointed out that there was no air movement. 

Had he not arrived at the entry at that time, the ventilation would not have been immediately 

restored. As the ·inspector explained "[ t ]hey knew their past history of the gas in [the] mine[] 

and·that'theyneeded to keep their ventilation up, ,and to just have no ventilation anywhere-in°the .. 

area and no evidence that_ ventilation had ever been there[,] to me[,] was aggravate~ conduct." 

(Tr. 67). The violation was exceedingly obvious and Shelby demonstrated aggravated conduct 

constituting more than ordinary negligence. 

Shelby argues.that the violation was not unwarrantable because the curtain had been in 

place during the mining cycle the day before and it had been taken down to clean up around the 

area. I have addressed the differences of opinion regarding whether the curtain was in place or 

why or when it was removed. The operator's argument as to why the curtain was removed is .. 

difficult to understand. The cleaning up of muck generally occurs after the roof is bolted and · . , . 

··supported· so as to be safe. ·Further, even·ifmucking were oc.eurring, the curtains would only be.; · 

moved aside so that the air would continue to be moved to the face. (Tr. 75). After the mucking 

occurs, the ·curtain must be returned to its original location. There is no evidence that any.effort 

was niade. to restore the ventilation, and it seems likely that none wbuld have been made had ' . , 

Weekly nof amved on the scene. · · ·· · · 

Shelby also argues that the previous methane ignitions occurred while coal was being 

mined, and consequently no higher degree of negligence can be imputed for ignoring ventilation 

in idle areas. Shelby further contends that the history of ignitions is not important for 

determination of gravity and negligence because the earlier ignitions occurred irt working areas, 

as opposed to idle areas, as is the issue in this case. Given that the Coke Mine is a gassy mine 

subject to ignitions, Shelby has a duty to see that the ventilation plan is strictly adhered to .. 

While ignitions during the mining process certainly require Shelby to be extra vigilant during the 

operation of the continuous miner, they also put Shelby on notice that there are unknown 

bleeders in the mine which have the known potential for ignitions. Additionally, the fact that 

ignitions occurred in spite of the presence of the automatic shutoff safety feature on the 

continuous miner is further evidence that Shelby was aware of the high potential for ignitions 

and the necessity of taking extra precautions to prevent such from happening. 

I find that the mine was more than careless, and exhibited more than ordinary negligence 

in having two key ventilation controls moved or missing in an area where methane can build and 

work will shortly occur. The mine was clearly on notice that ignitions are a problem, that the 

mine was gassy, and that leaving the entry without any ventilation at the face is a fonnula for 

disaster. 

31 FMSHRC 1508 
b. Order No. 7692076 

fuspector Weekly issued Order No. 7692076 on November 27, 2007 for an unwarrantable 

violation of30 C.F.R. § 75.360(b)(3). The order describes the violation as follows: 

An inadequate pre-shift examination was performed on the # 1 section at the Coke 

mine on 11/27/0.J on the owl shift. The pre-shift examiner did not correct the 

ventilation in the #5 face, the blowing curtain was 12 feet from the last row of 

bolts, 42 feet from the face and there was no back drop or exhaust curtain in place 

allowing the air to short circuit directlyto the return and not ventilate the #5 face. 

This mine has had 6 ignitions from 3/3/0/2006 until 11/2/2007, one resulting in 2 

employees receiving burns. If this condition is allowed to exist methane will 

build in this entry and would cause a ignition or explosion. 

Gov.Ex.4 

Weekly determined that it was ''reasonably likely" that the violation would result in an 

injury involving "lost work-days or restricted duty," that the violation was S&S, that three 

employees were affected, and that the operator's negligence was high. The Order was issued 

.··pursuant to section 104(d)(l) oftJ:ie Act, and alleges that the violation was the result of Shelby's. 

unwarrantable failure to comply with the standard. A civil penalty in the amount of$5,21 l.OO .. 

· has heen proposed for this violation; · . ~ . . , 

·The fact that the conditions, as cited by Weekly and discussed above, existed at the time 

of the inspection is not disputed. . Clements; who traveled with Weekly dUring the inspection, · _ 

confirmed the existence of the conditions. He testified that there was not an exhaust ventilation . 

curtain and that the blowing curtain was more than 30 feet back from the face. In addition to the · 

ventilation violation, Weekly also found a number of roof control violations which he included 

in his determination that a preshift examination was not adequately conducted. 

1. The Violation 

Order No. 7692076 alleges a violation of 30 C.F.R. § 75.360(b), which requires that 

preshift examinations be conducted in areas where miners are scheduled to work or travel, and 

that the certified person conducting the examination "examine for hazardous conditions, test for 

methane and oxygen deficiency, and determine if the air is moving in its proper direction." 

Joel Stevens, a certified preshift examiner, conducted the preshift examination for the 

7:00 a.m. to 3:00 p.m. day shift on November 27, 2009. (Tr. 130-131, 139). The examination 

began around 3:00 a.m. and was completed around 5:00 or 6:00 a.m. (Tr. 127). The 

examination report did not list any hazardous conditions or violations. However, a few hours 

later, Weekly, while conducting a spot inspection, found what he believed to be violations of 

safety standards and issued the ventilation citation discussed herein, as well as roof control 

citations. (Tr. 34-35). The preshift examiner's report does not mention any ventilation: 

problems, nor does it mention the roof areas that were cited by the inspector. {Tr. 131 ). 

31 FMSHRC 1509 
The Secretary's position is that the miner charged with the duty of conducting the 

preshift examination conducted an inadequate preshift examination because he did not report the 

ventilation and roof control problems, nor did he correct the ventilation problems as required. 

(Tr. 78, 81, 33-35). The roof control citations referred to unsupported roof in the #1, #4 and #5 

entries. (Tr. 34). Respondent, on the other hand, contends that the preshift examination was 

timely completed and accurately reflected that no hazardous conditions existed when the 

examination was mad.e (i.e., that the conditions did not exist until after the preshift). 

Specifically, the Respondent avers that the ventilation curtains were in place and, therefore, were 

not required to be noted on the preshift examination report. The Respondent did not address 

why the areas of the roof that were cited by Weekly were not included in the preshift 

examination. 

The critical question is whether the conditions existed at the time of the preshift 

examination. The hazardous conditions most likely developed, as Weekly believed, during the 

production shift, more than twelve hours before the preshift was conducted. (Tr. 72-75). · 

Weekly cited the condition as having been present for five hours, based on the time when the 

preshift examination was to have occurred. I have already credited Inspector Weekly' s 

testimony that the ventilation violations existed at the time the coal was cut from the #5 entry on 

the second shift on November 26th. It follows that the ventilation controls were missing, and 

violation apparent, when Stevens conducted his preshift examination in the early hours of 

·November27th. · 

During his testimony Clements identified Joel Stevens, a foreman at the Coke Mine, as 

the pteshift examiner. Clements testified that he did not follow up with Stevens to determine 

whether or not the conditions, as cited by Weekly,·existed at the time Stevens conducted. the 

preshift examination. (Tr. 131-132)~ Moreover; Clements did notprovide any justification for 

the b1td roof area or raise any defense· that the roof violation occurred during the period after the 

preshift examination but prior to the inspection. 

Upon consideration of the above factors, I find that, at the time of the preshift 

examination, hazardous roof and ventilation conditions existed. Further, I find that, the 

conditions should have been discovered, corrected and reported during a proper preshift 

examination and, hence, a violation is proven. 

2. Significant.and Substantial 

A significant and substantial ("S&S") violation is described in section 104( d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." Cement Div., Nat 'I Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981 ). 

I find that there was a violation of an underlying mandatory safety standard. The preshift 

examiner not only failed to record the presence of hazardous conditions, but also, and more 

31FMSHRC1510 
importantly, failed to even identify those hazards. In doμig so, Shelby violated both section 

75.360(a)(l), requiring the preshift examination, and section 75.360(b), requiring the examiner 

to look for "hazardous conditions, test for methane and oxygen deficiency, and determine if the 

air is moving in its proper direction." 30 C.F.R. §§ 75.360(a)(l), 75.360(b). Second, I find that 

the failure to identify the conditions and note them on the preshift examination report would 

have resulted in at least three miners entering and working in a dangerous area that was both 

unbolted and unventilated. 

With regard to the third element of the Mathies factors, the Commission has held that 

judges should ordinarily not rely on presumptions. Manalapan Mining Co., 18 FMSHRC 1375, 

(Aug. 1996). Shelby argues that the violation is not S&S because it is unlikely that there would 

have been any activity in the area prior to the ventilation being restored. Hence, failure on the 

part of the examiner to notice this violation cannot result in an injury. I must analyi;e whether 

there was a reasonable likelihood that the hazards contributed to by the violation would result in 

an injury in the event that the hazards that went unnoticed by the preshift examiner were not 

corrected prior to normal mining operations. While Shelby argues otherwise, the fact that the 

cited area was idle at the time of the citation has little bearing on the S&S finding; Weekly 

confirmed that while the #5 entry was idle during his inspection, other areas were not. The men 

had already entered the mine for the day shift when Weekly observed the violations of the roof 

and the ventilation plans and, therefore, the miners were already placed in a dangerous situation;· 

one intended to be corrected by the requirement of the preshift examination .. 

. The Commission has recognized that the preshiftexamination requirements are·"of · 

· fundamental :importance in assuring a safe working environment underground." Buck Creek .. 

. Coal Co.~ 11:FMSHRC 8, 15 (Jan. 1995); see also 61 Fed. Reg. 9764, 9790 (Mar. ll, .1996) : .. · 

·("The ·presbift examination is a critically. important and fundamental safety practice in the· · .. , · · 

industry.· It is a primary means of determining the effectiveness of the mine's ventilation system' 

and of detecting developing hazards, such as methane accumulations, water accumulations, and 

bad roof"). In Buck Creek, the Commission concluded that the third Mathies element had been 

proven when miners were allowed to work in a preshifted area even though another area of the 

mine that should have been examined was not. 17 FMSHRC 8 (Jan. 1995). There, the 

Commission found that "hazards in an unexamined portion of the mine could affect" the area in 

which miners were working. Id. at 14; Jim Walter Resources Inc. 28 FMSHRC 1068 (Dec 19, 

2006). The failure of the preshift examiner to recognize the dangers presented by the unbolted 

and unventilated area of the #5 entry could result in an ignition, explosion, or potentially a roof 

fall in the areas cited. The occurrence of any of these events is reasonably likely to result in 

injuries to the roof bolters or the service man that would be running the scoop. Finally, as I have 

indicated above, the injuries associated with methane ignitions and explosions are serious in 

nature. 

Preshift examinations play a crucial role in ensuring that miners work in a safe 

environment. I credit the testimony of Weeldy that conditions which presented an explosion 

hazard were present in the area and were not noted by the examiner. The hazards created by lack 

of ventilation and unsupported roof in several locations, and the failure of the preshift examiner 

to warn miners, or correct the conditions, exposed miners to a reasonable likelihood of serious 

injury. 

31FMSHRC1511 · 
3. Unwarrantable Failure 

The term ''unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or the ~serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC 189, 193-194 (Feb. 1991). Aggravating factors include the length of 

time that the violation has existed, the extent of the violative condition, whether the operator has 

been placed on notice that greater efforts were necessary for compliance, the operator's efforts in 

abating the violative condition, whether the violation was obvious or posed a high degree of 

·danger and the operator's knowledge of the existence of the violation. See Consolidation Coal' 

Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC ~92, 195 (Feb. 

1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 

FMSHRC 588, 593 (June 2001 ). All of the relevant facts and circumstances of each case must 

be examined to determine if an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353. 

The Secretary argues that the violation was the result of an unwarrantable failure because 

the conditions were extensive, obvious and existed for more than one shift~ that they posed a 

high degree of danger, and that the failure to note or record them on the preshi:ft report ·evidenced , . . 

·.an indifference to safety. The evidence justified a fmditig that the conditions, as Weekly found · 

them, had ·existed at. the time of the preshi:ft examination and hence, ·the Secretary's argument is 

well founded~ 

Shelby offered little evidence to contta(iict the Secretary's allegation of ~warrantable 

failu:re to comply with the requirement of a thorough and meaningful preshi:ft examination. 

Clements testified that he looked into the ventilation violation, but offered little information 

about the violation for the preshift examination beyond providing the name of the individual 

who was responsible for conducting it. Clements did not investigate the allegations of an 

inadequate preshift, as he alleged he had done regarding the ventilation citation, and offered no 

explanation as to why the examiner failed to notice the violative conditions. 

The history of the mine demonstrates an institutional lack of interest in demanding that 

the preshift examinations be done adequately at this mine. See Gov. Ex. 1. In February 2007, 

the mine received an unwarrantable failure order for failure to conduct an adequate preshift 

examination. Two months later a citation was issued for failing to meet the requirements of the 

preshift. During the nine months prior to this violation the mine was warned about the 

inadequacy of its preshift examinations. Everyone at the mine, including the preshift examiner, 

knew that the ventilation system presented a challenge because the mine bad at least six ignitions 

from March 2006 until just a few weeks before W eek.ly issued his citation. The actions of the 

preshift examiner constitute high negligence. The examiner failed to do his job even in a cursory 

fashion. It was obvious that the ventilation controls were not in place, one curtain was missing 

and another was pulled back 12 feet. Yet, the preshift examiner did not mention the problem 

and subsequently didn't correct the problem prior to the workers entering the mine. 

31FMSHRC1512 
I find that the evidence establishes that the failure to conduct an adequate preshi:ft 

examination constituted more than ordinary negligence on the part of Shelby. Shelby's behavior 

and lack of interest in the importance of the preshi:ft examination can be accurately characterized 

as "intentional misconduct," which the Commission has concluded "is a form of unwarrantable 

failure for purposes of the Mine Act." Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 

(Feb. 1991). 

II. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

, assess civil penalties de novo for violations of the Mine Act are well established.· Section. 11 O(i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F .R. § 2700.28. The Act requires that, "in assessing civil monetary penalties, 

the Commission [ ALJ] shall consider" six statutory penalty criteria: 

[1] the operator's history of previous violations, [2] the appropriateness of such 

. penalty to the size of the business of the operator charged, .[3] whether the 

··:operatorwasnegligent, [4]the effect ofthe operator's aQ.ilityto·continue in 

business, [5] the gravity of the violation, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 u.s.c. § 820(i). 

In keeping with this statutory requirement, the Commission has held that "findings of 

fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 

FMSHRC at 292. Once findings on the statutory criteria have been made, a judge's penalty 

assessment for a particular violation is an exercise of discretion, which is bounded by proper 

consideration of the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera 

Green, 22 FMSHRC 616, 620 (May 2000). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business, and that the violations were abated in good 

faith. The history is normal for this size operator, with the exception of the violations discussed 

above. I find that the Secretary has established high negligence on the part of Shelby for both 

violations. Further, I find that the Secretary has established the gravity as listed in each citation. 

Both violations in this case are extremely serious, given this mine's history of ignitions 

and the possibility for a major accident. Not only was the ventilation violation obvious to any 

person who approached the #5 entry, it was not recorded by the person charged with ascertaining 

that the mine was safe for miners who were, or would be, working in the area. The mine had at 

least six ignitions prior to this incident and each had been investigated. It is fair to say that the 

31FMSHRC1513 
mine paid little attention to the safety of its miners in ignoring its history and the potential for 

disaster. 

III. ORDER 

Based on the criteria in section 1 IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a 

penalty of $5,000.00 f6r each violation. Shelby Mining Company, LLC is hereby 

ORDERED to pay the Secretary of Labor the sum of $10,000.00 within 30 days of the date of 

this decision. 1 

Distribution: 

~. ~vel:~Ju~ ~~~~ 

Thomas Grooms, Office of the Solicitor, U.S. Department of Labor, 618 Church St. 

Suite 230, Nashville, TN 37219 (Certified Mail) 

Warren Lightfoot, Maynard, Cooper & Gale, PC, 2400 Regions/Harbert Plaza, 1901 Sixth 

Avenue North, Birmingham, AL 35203. (via Certified Mail) 

/ate 

1 Payment should be sent to Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, 

P.O. Box 790390, St. Louis, MO 63179-0390. 

31 FMSHRC 1514 
ADMINISTRATIVE LAW JU:OGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

BIIJ., Y BRANNON, 

Complainant 

v. 

P ANTIIER MINING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v. 

PANTHER.MINING, LLC and 

MARKD. SHELTON, 

Respon(ient · 

SECRETARY ·oF LABOR, . 

on behalf of BILLY BRANNON, 

Complainant, 

v. 

P ANTIIBR MINING, LLC, 

Respondent 

WASHINGTON, D.C. 20001 

(202) 434-9980 

November 6, 2009 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. I Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

No. l Mine. 

: · ' . Mine: ID -.15-18 l 98 . 

. 

. . 

DISCRIMINATION PROCEEDING . - . 

Docket No. KENT 2009-1259-D 

BARB CD 2009-09 

No. I Mine 

Mine ID 15-18198 

ORDER GRANTING IN PART AND DENYING IN PART 

. RESPONDENT'S MOTION TO COMPEL 

ORDER REQUIRING PRODUCTION OF DOCUMENTS 

AND 

PROTECTIVE ORDER 

In Docket No. KENT 2009-1225-D the Respondent, Panther Mining LLC (''Panther 

Mining" or "the company''), moves to compel the Complainant, Billy Brannon, to respond to 

several interrogatories in the company's First Set of Interrogatories and to produce certain 

31FMSHRC1515 
documents requested in the company's First Request for Production of Documents. According to 

the company, Brannon either has objected to the interrogatories and requests and/or has provided 

incomplete information. Brannon replies that the Respondent's motion is not well taken. In 

addition, he seeks specific protection :from production for a particular document claiming it is 

shielded by attorney-client privilege. For the reasons stated below, the motion and request are 

granted in part and denied in part, and the claimant's invocation of attorney-client privilege is 

recognized in part. -

INTERROGATORIES, ANSWERS AND RULINGS 

Interrogatory 1. With regard to the allegations in paragrap~ _6 of the Complaint of 

Discrimination ("the Complamt")1: · '·· · · · · · 

(a) Identify each document, including witness statements, which relates to the facts 

alleged. Motion; Exh. A at I. 

Answer: Brannoz~ objects to this interrogatory as being overly broad and not reasonably 

calculated to lead to the discovery of admissible evidence. For example, as [the company] is well 

aware, Brannon has filed a civil lawsuit against Cloverlick Coal Company [(Brannon's then 

employer and a "~ister" company of.Panther)1, and Robert Salyer[,J[a Cloverlick foreman]. 

("Saiyer'',) in Harlan [Kentricky] C~μit.Court .. Every do_cupientift .that cas~ arguably ''relates. to 

the facts alleged" in [paragraph] 6 otthe instant Complaint c>fDiscrilnination.' In addition, every 

document related to Black Mountain Resources' investigation of the incident "relates to the facts 

alleged." · · · · · 

Without waiving said objection, a "mine incident report'' regardi.llg saiyer,s uiiprovoked 

assault of Brannon was also completed on 1/23/08.. [The company] already has a copy of this 

1

Paragraph 6 of the Complaint states: 

On January 23, 2008, while he was working underground 

at Cloverlick Coal's No. 1 mine, Brannon was physically 

assaulted by a [Cloverlick] foreman, Robert Salyer 

("Salyer"). After Brannon complained about said 

assault to officials of Cloverlick Coal and Black 

Mountain Resources, [(Black Mountain is the parent 

company of Cloverlick and Panther)], he was 

transferred to [Panther's] No. 1 mine by 

[Black Mountain]. Brannon worked at said mine 

until the discriminatory acts took place that form the 

bases of this case. 

Complaint at 3. 

31FMSHRC1516 
document. Motion; Exh. Cat 1-2. 

The company states that Brannon's answer is not responsive, because the company asked 

Brannon to "identify'' each document, including witness -statements, relating to the facts alleged 

and Brannon "did not identify a single document in his· possession, nor did he state he has none." 

Motion 2. The company maintains it is entitled to know the bases for Brannon's claims, and that 

Brannon knows he neectnot specifically identify documents filed in formal legal proceedings to 

which the company is a party, but that he can identify them generically and that Brannon is 

required to identify each· document in his possession that relates to the facts alleged. Id. 

Brannon responds that he attempted to answer lnterrogat9ry ! in good faith, that 

paragraph 6 was included in the complaint as background information, and that for Mine Act's 

purpose the important thing in the paragraph is not the allegation of assault, but that ·Brannon 

complained about the assault to officials of Cloverlick and Black Mountain. Resp. at 3. 

Moreover, because Panther's attorney represents Cloverlick in the civil suit, Panther is well 

acquainted with the basis of the suit. Further, since Cloverlick's attorney has deposed Brannon 

and interviewed everyone with knowledge of the assault, it is pointless to ask Brannon to identify 

each person about whom the company already knows.2 

-

RUiing: The motion IS GRANTED IN PAllT. •. I agree with Brannon that the pertinf?}t . : 

facts for Mine Aetpmposes are that Brannol! ~J.jiplained to. officia,I~· of Cloverlickand;Black ; · ·. 

Mountairi 'about the alleged assault and that Brannon was sub&equetttly ti-atiSferred to Panther's 

No.' 1 mine, where he worked until his employment was terminated. Therefore, within 20 days of. · 

the date of this Order, Brannon shall respond to Interrogatory l:(a) by identifyitig each document, 

including witness statements, of which he is aware that relates to Brannon's complaint(s)about 

the alleged assault to Cloverlick and to Black Mountain·.oflicial~ ·and he shalHdentify each. · 

document of which he is aware that relates to his subsequent transfer to Panther's mine. 

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 2. 

Answer: Brannon, Salyer, the miners who were in the buggy with Brannon at the time of 

the assault; Rick Raleigh ... who interviewed the miners o/b/o Panther; Denise Davidson; Otis 

Doan; Steve Hodges ... ; Tony Oppegard ... ; Tracy Stumbo (OMSL, P.O. Box 907, Martin, KY 

41649); various unknown officials at Black Mountain. Motion; Exh.C at 2. 

The company objects that ''the miners who were in the buggy with Brannon at the time of 

2

Counsel for Brannon also makes unflattering observations about the way the company's 

interrogatories are framed and about opposing counsel's "lawyering'' skills. Resp. at 3. Counsel 

is requested to desist :from such observations. Those appearing before the Commission are 

expected to treat one another with civility at all times. If comments are necessary concerning an 

attorney's manner of practice, they are made by the Commission and its judges, not by opposing 

counsel. 

31FMSHRC1517 
the assault" and ''various unknown officials at Black Mountain" are vague statements. Motion at 

2. It asserts that Brannon should "identify these persons by names[,] or[,] if not by name, in 

some other manner." Motion at 3 

Brannon responds, inter alia, that Interrogatory 1 (b) seeks ''virtually pointless 

information." Resp. at 5. 

Ruling: As stated above, as I read the interrogatory, for Mine Act purposes it asks 

Brannon to identify each person who knows about Brannon's complaints to officials of 

Cloverlick and Black Mountain officials about the assault and to identify each person who knows 

about his subsequent transfer to Panther's No. I mine. The motion JS. G~D as fol}Qws: 

Within 20 da:Ys of the date of this Ortler, Brannon shall identify those of whom he is aware (both· 

miners and company officials) who have knowledge of his complaint(s)and subsequent transfer. 

Interrogatoiy 2: With regard to the allegations in paragraphs 7 and 8 of the Complaint [

3

] 

[,]please: 

(a) Identify each document, including witness statements, which relates to the facts 

alleged. Motion; Exh. A at 2. ' .. :_ 

· . AnSwer:' Brannon. objects to.this .interrogatory. as }'>eing .overly·broOO, ~d' not reasonably.~ '' . ·. •• • . • •I 

. . ·.;;_.i .. ·" 

. . . ····1· ··, ... 

,_ ~Paragraphs 7 and 8 of th~ compl~t state:_·. . .. 

7: On April 29, 2008, Brannon's attorney wrote. 

to Johnny Greene, the Executive Director of the 

Kentucky Office of Mine Safety & Licensing 

("OMSL"), and asked OMSL to file disciplinary 

charges against Salyer -with the Kentucky Mine 

Safety Review Commission ("MSRC") because 

ofSalyer's assault of Brannon. Brannon, through 

his attorney, asked OMSL to seek the revocation 

ofSalyer's foreman's certificate. 

8. As a result of the letter ... OMSL conducted an 

investigation ofSalyer's assault of Brannon, 

OMSL's chief accident investigator, Tracy 

Stumbo ("Stumbo") subpoenaed and interviewed 

the witnesses to the assault, and Stumbo also 

subpoenaed and interviewed Salyer, who was still 

employed by [Black Mountain.] [Footnote deleted]. 

Complaint at 3-4. 

31FMSHRC1518 

. ' ~· 
calculated to lead to the discovery of admissible evidence. For example every document in 

OMSL's investigatory file regarding Salyer-arguably 'relate8 to the facts alleged' in,, 7-8. 

Without waiving the objection, the letter of Johnny Greene referenced in ,- 7 is being 

provided. Motion; Exh. C at 2-3, 

The company notes that aside from the Greene letter, Brannon merely referred to "every 

document in OMSL's investigatory file" and that Brannon "should be required to identify and 

produce every document in his possession relating to the facts alleged." Motion at 3. 

Brannon responds that he views the letter of April 28, 2009, as a ''protected activity" 

under § 105( c) of the Mine Act and that he already has provided the. letter to the company, . 

despite the fact the company's attorney has a copy. As far as the identities of each person who 

knows about the facts alleged, Brannon asks why his attorney should "waste his time listing 

people whom the company already knows - i.e. [Oppegard;] [Brannon;] Johnny Greene; Tracy 

Stumbo; Salyer and Raleigh." Resp. at 7. 

Ruling: The motion IS GRANTED IN PART. The company asks Brannon to identify 

each document, including witness statements, relating to the facts alleged in paragraphs 7 and 8 

· of the complaint. The pertinent facts alleged in Paragrapw7 are: that on Apri129, 2009; :Opp~gatd ·, 

·. wrote the letter 'fr,, Greene asking OMSL to filed:disciplinary charges. agafustSalyet because. oL,:. · 

the alleged assault. The document relating to the facts alieged is the letter:· which the • · 

Complainant has identified. Therefore, Brannon has complied with this· part -of the interrogatory.·;; 

However; he bas not complied with theinterrogatoi'y as it.relates-to Paragraph 8 of the ... · ._·. ; 

Complaint,. As I read the interrogatory, the pertinent facts alleged are that: Stumbo subpoenaed ·. ·: 

and interviewed the witnesses to the assaulfand that-Stumbo subpoenaed .and interviewed Salyer. : · 

The interrogatory requires Brannon to identify the documents of which he is aware relating to 

Stumbo's interview of the witnesses and Stumbo's subpoena and interview of Salyer. Within20 

days of the date of this Order, Brannon is ordered to comply by sending the company a list of the 

documents of which he is aware that relate to Stumbo's interview of the witnesses and Stumbo's 

subpoena and interview of Salyer. Ifknowri, Brannon must describe each document by type 

(e.g., letter, statement, affidavit, etc.) date, author, and subject matter (a brief summary is 

sufficient). 

(b) Identify each person who knows about the facts alleged, including those who were 

interviewed by Stumbo. Motion; Exh. A at 2. 

Answer: Oppegard; Brannon; Johnny Greene; , .. Stumbo; Raleigh; Salyer. The 

employees of Cloverlick Coal, a subsidiary of Black Mountain ... who were interviewed by 

Stumbo are known to Raleigh. Motion; Exh~ C at 3. 

The company objects to that part of Brannon's response which states: "[T]he employees 

of Cloverlick ... who were interviewed by Stumbo are known to Raleigh." The company 

31FMSHRC1519 
asserts that Brannon should be required to identify the persons if he knows their identities. 

Motion at 3. 

Brannon responds that it is a waste of time for his attorney to identify people who the 

company already knows, that the only other persons who would have knowledge of those 

interviewed are the interviewees themselves, and that Brannon "does not actually know who was 

interviewed." Resp. at 7-8. Brannon goes on to state his ''understanding" that the "miners who 

were interviewed were the same miners that Raleigh already interviewed." Resp.at 7. 

Ruling: The motion IS GRANTED. The statement to which the company objects is a 

non-response. The interrogatory asks Brannon to identify each person who was interviewed by 

Stumbo, and Braniton must respond to the ititertogatory as asked. This means he must 

identifying by name (assuming he knows the name) each person he knows who was interviewed 

by Stumbo. If Brannon cannot identify the person(s), he should so state. Within 20 days of the 

date of this Order, he is directed to answer the interrogatory as asked. 

Interrogatory 3. With regard to the allegations in paragraph 9 of the complaint[,] [4] 

please: 

.(a) ;]dentify,each document[,] includirig witness·statemeilts, which relates to the facts · 

, 3:llege<L:Motion; Exh; A at 2. · : <. ·. ··· :: · · · · " · · /. ·· 

... · 

Answer.' Brannon objects to this interrogatory as being overly broad and not reasonably 

· ealculated to lead. to the discovery of:admis8ible evidence. For example, every doctiment in : ~- . · · 

'MSHA'sjnvestigation file.arguably ~'relates·to the facts alleged" in 19, which Panther already- . 

has in its possessiOn. ·· Motion; Exh. C at 3 .· . · : , ; · .. 

The company asserts that "Brannon should be required to produce the documents in his 

possession, [and] not refer generally to broad categories of documents." Motion at 4. 

Brannon responds that every document in MSHA' s investigatory file "relates to" 

Brannon's discrimination complaint [filed with MSHA], but that Brannon does not have access 

4

Paragraph 9 of the Complaint states: 

On September 7, 2007, while Brannon was working 

in the Panther mine, he filed a discrimination complaint 

with MSHA ... regarding [Panther's] discriminatory 

treatment of him because, among other things, he had 

documented safety problems regarding the buggy he 

was assigned to operate. 

Complaint at 4. 

31 FMSHRC 1520 
to the file and cannot identify each document therein. Further, every document in Brannon's 

§105(c)(3) complaint arguably ''relates to'; the initial discrimination complaint, and Brannon asks 

what purpose is served to identify every pleading in a case file the company already has. Resp. at 

4. 

Ruling: The motion IS GRANTED. Brannon's answer is a non-answer. Paragraph 9 of 

the complaint states that Brannon engaged in protected activity at the mine by filing a 

discrimination complamt with MSHA.. It further asserts that Brannon was subjected to 

discrimination because of prior protected activity regarding his documentation of safety problems 

with his assigned buggy and "other things." Within 20 days of the date of this Order, Brannon 

shall·:respond to the interrogatory~ asked by identifying each document of which he is .aware 

that relates to the fact he filed the September 7 complaint with MSHA and to the allegations 

within it. Obviously, he should identify the complaint. He also should identify any documents, 

including witness statements, filed with the complaint and any documents, including witness 

statements, that relate to Brannon's assertions of discrimination due to his documentation of 

safety problems associated with his assigned buggy and other protected activities that he 

maintains form the bases for the company's alleged discrimination. 

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 2. . . 

•. :·-t:·. 

Answer: Oppegard, ·wesAddington .... , Brannon, Hodges, Raleigh; Gary Harris;vari~ 

other MSHA personnel. Motion; Exh. C at 3. , , 

; /:": 

. · · ' · ;· The. company states that Brannon should be.required to identify .the ''various:other MSHA., 

.· pet-sonnet". Motion at 4. , 

Brannon responds that the requirement· is "frivolous." Resp~ at 9. 

Ruling: The motion IS G~D. Brannon must answer the interrogatory as asked. 

The interrogatory does not require him to speculate as to whom might know he filed a September 

7 complaint or who might be aware of the nature of his complaints about the buggy or his other 

unspecified protected activities, it asks him fo identify those he "knows." Within 20 days of the 

date of this Order, Brannon shall identify those he knows are aware of(l) his filing of the 

September 7 complaint; (2) his documentation of the safety problems associated with his 

assigned buggy; and (3) other protected activities that he alleges form the bases for the 

discrimination he asserted on September 7. 

Interrogatory 4. With regard to the allegations of paragraph 11 of the Complaint [

5

][,] 

5

Paragraph 11 states: 

On September 23, 2008, Brannon's attorney wrote 

a letter on Brannon's behalf to Ivan T. Hooker, the 

31FMSHRC1521 
please: 

(a) Identify each document which relates to the facts alleged. Motion; Exh. A at 3. 

Answer: Brannon objects to [the] interrogatory as "overly broad and outside ... his 

knowledge." For example, "every document regarding the issuance of a citation as a result of the 

letter arguably "relates-to the facts alleged" in 1 11. If Panther contested said, citation, then every 

document related to that contest proceeding is arguably "related to the facts alleged." 

Without waiving said objection, the letter referenced in [paragraph] 11 (a copy of which 

was mailed t°'Raleigh on 9/23/08), [C]itation [No.] 7496827 issued by MSHA to Panther ... and ·' 

the accompanying MSHA inspection notes;[6

) Motion; Exh. C at 4. · · 

. The company asserts that Brannon's·response is ''vague" and that Brannon "should be 

required to identify and produce responsive documents. Motion at 4. 

Brannon states the crux of the allegation in paragraph 11 is that Brannon engaged in a 

protected activity through his attorney when the attorney wrote to Hooker, and that even though 

the interrogatory is "overly broad," Brannon nonetheless identified three documents, all of which 

are in the company~s possession. Resp. at 10. · · · ; ~· ·' .. 

Ruling: The motion IS DENIED. As I read the Complaint, the pertinent.facts allegoo are . '. 

that Brannon's attorney wrote·a letter on September 23 tO the MSHA District Manager regarding , . 

the company; s :3:J.leged failure:to provide Brannon With SCRS:.s. ·As'. Btannon notes, the comp~y .. 

does nqt deny that it was sent and presumably Still ha8 a copy of the letter. Brannon identified 

the citation that was issued as a result of the· inspection and ·the inspector's notes associated with. 

the citation. He need not do more. 

(b) Identify each person who knows· about the facts alleged. Motion; Exh. A at 3. 

Aitswer: Oppegard; Wes Addington ... ; Brannon; Hodges; Gary Harris; other MSHA· 

personnel. Motion; Exh. C at 4. 

MSHA District Manager responsible for regulating 

the Panther mine, regarding Panther's Mining's 

failure to provide Brannon with the required 

SCSR's. 

Complaint at 4. 

6

Brannon asserts Citation No. 7496827 and the accompanying MSHA inspector's notes 

already have been given to the company as a result of the company's production of documents 

request in Docket No KENT 2009-1259-D. 

31FMSHRC1522 
The company states that Brannon should be reqtiired to identify the "other MSHA 

personnel." Motion at 4. 

Brannon responds he does not know who the "other MSHA personnel" are, but he 

"assumes" there are unnamed employees ofMSHA who know about the letter. Resp. at 10. 

Ruling: The motion IS DENIED. I conclude Brannon has answered the interrogatory to 

the best of bis ability. His reference to "other MSHA personnel" is based on bis assumption that 

there are other MSHA employees who know about the September 23 letter, but that he does not 

know this for a fact. Brannon's assumption is reasonable, and I find that he has done what he 

could to respond to .the int~gatory. 

Interrogatory 5. With regard to the allegations in paragraph 13 of the Complaint [7][,] 

identify all facts, persons with knowledge and documents, including witness statements, 

regarding the investigation conducted by Guy Fain. Motion; Exh. A at 3. 

Answer: Brannon objects to this interrogatory as being overly broad and outside the scope 

of his knowledge. Without waiving said objection, Brannon states that ... [the company] sat in 

on the interviews of numerous witnesses who were interviewed by [Fain]~ including the 

interview of Shelton, whereas Brannon did not attend any of these interviews. Motion;Exh •. Cat· 

4. . .. ·.· .. ·. . . .. . ~ ... : '.':' . : . i ~ 

The company. states that Bnuinon should be required to identify the persons known to 

him~ as wellas::the:facts and documents .. thatsU:pport the allegations:mparagraph 13, that it is not, 

responsive fot·Brannon to assume that Panther has'all: of the information requested. Motion at 4. · 

According to the company, although Brannon refers to statements~- gave to MSHA, he gave, · 

''numerous" such statements and he should be required to identify them. 

7

Paragraph 13 states: 

As a result of Brannon's filing of the safety 

discrimination complaint referred to in 1 9, 

MSHA assigned a special investigator, Guy 

Fain ("Fain''), to investigate the case As 

part of his investigation, Fain interviewed 

employees of Panther Mining, including 

Shelton, regarding Brannon's allegations 

of discrimination and unsafe mining 

practices. 

Complaint at 4-5. 

31 FMSHRC 1523 
Brannon does not specifically respond to the company's assertions~ 

Ruling: The motion IS GRANTED. Brannon must respond to the interrogatory as asked. 

This means that within 20 days of the date of this Order, Brannon must identify facts and 

documents within his knowledge regarding Fain's investigation. For example, if Brannon has a 

letter from MSHA informing him ofFain's appointment as the investigator, it must be identified. 

If Brannon knows the-names of persons who assisted Fain in his investigation, the persons must 

be identified, and if Brannon or anyone he knows provided a written statement(s) to Fain as part 

ofFain's investigation, the statement(s) must be identified. If Brannon has no knowledge of such 

facts and/or documents, he muSt: so state. 

Interrogatory 6. With regard to the allegations of paragraph 14 of the Complaint [

8

][,] 

please; 

(a) Identify each document, including witness statements, which relates to the 

facts alleged. Motion; Exh. A at 3. 

Answer: Brannon objects to this interrogatory as being overly broad. For example, all 

documents filed in said case .... which already are in the possession of Panther - arguable "relates 

-to the facts alleged." in, 14. Motion; Exh. Cat 5. · · ) · , · 

The company a8serts that Brannon should be required to identifyr~sponsive documents 

··relating to ·the allegations in paragraph· 14 and.produce them.· It also notes. that· Panther advised, 

Brannonlie can "generically identify"' ·and·need. not produce.officially filed., documents in : ; · 

identified legal proceedings. Motion at 5. · . . · , · . · 

Brannon does not specifically respond to the company's assertions. 

Ruling: The motion IS GRANTED. Within 20 days of the date of this Order, Brannon 

must respond to the interrogatory as asked. Paragraph 14 states that on November 20, 2008, 

Brannon filed a complaint of discrimination with the Commission. Brannon's response should 

identify the complaint, any documents filed with it, and any documents upon which the 

8

Paragraph 14 states: 

On November 20, 2008, while Brannon was 

still working at the mine, he filed a Complaint 

of Discrimination against Panther Mining -

with the ... [Commission] - under§ 105(c)(3) 

of the Mine Act, regarding the matters set forth 

iicm 10-12 herein. 

Complaint at 5 (footnote deleted). 

31FMSHRC1524 
complaint was based. 

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 3. 

Answer: Oppegard; Brannon; Hodges; Chief Judge Lesnick; Judge Barbour; Raleigh; 

various other employees of Panther Mining. Motion; Exh. C at 5. 

The company asserts that Brannon should be required to identify the ''various other 

employees of Panther Mining." Motion at 5. 

Brannon does not specifically respond to the company's assertions. 

Ruling: The motion IS GRANTED. If Brannon knows the identity of the any of the 

''various other employees," within 20 days of the date of this Order, he must provide Panther 

with the names of said employees. If Brannon does not know the identity of any of the ''various 

other employees," within 20 days of the date of this Order, he must so state. 

Interrogatory 7: With regard to the allegations in paragraphs 15 and 16 of the 

complaint [9][,] please: 

9I>aragrapli 15-0fthe·complaintstates: · 

.. · On~Friday, February 27,:200~;,at.the end of, 

· Brannon's work shift, he .droveto, the MSHA 

field office in Harlan, Kentucky[,] to file another· 

safety discrimination co:rnplaint against Panther 

Mining, pursuant to § 105( c) of the Mine Act, 

and to report to MSHA various unsafe conditions at [the company's] No.1 mine. 

Brannon arrived at the MSHA office at 

approximately 4:30 p.m. 

Complaint at 5, 

Paragraph 16 of the complaint states: 

After he.filed the discrimination complaint 

[footnote deleted], Brannon spoke with Craig 

Clark, a[n] MSHA coal mine inspector, for 

about Yi hour outside the MSHA office. 

During this conversation, Brannon told 

Inspector Clark about various unsafe 

conditions at the mine. 

31 FMSHRC 1525 
(a) Identify each document, including witness statements, which relates to the facts 

alleged. Motion; Exh. A at 4. " 

Answer: Brannon objects to this interrogatory as being overly broad. For example, every 

document filed or produced in said case, including witness statements taken by MSHA (the 

interviews of which Panther sat in on)[,] arguably ''relate to the facts alleged in ft 15-16. 

Without waiving said objection, the complaint referenced in , 15 ... already is in the 

possession of Panther. Motion;Exh. Cat 5. 

The company argues that Brannon ~fshould be required to identify and produce the 

requested documents or make clear reference to dt>cuments· filed in specific legal proceedings.'' 

Motion at 5-6. 

Brannon does not specifically respond to the company's assertions. 

Ruling: The moti~n IS GRANTED. Brannon has not responded fully to the 

interrogatory. Brannon identified the complaint. However, it seems likely there are other 

documents relating to the February 27 complaint that Brannon has not identified and/or 

documents relating to the reporting of alleged unsafe working conditions. Within 20 days of the '. 

date of this Order, Braiinon niust identify any documents filed with the complaint. He·also must · · 

identify any documents that relate to; the allegedly unsafe working conditions upon which the 

complaint is based. If no such documents exist, he must.so state. In addition, he must identify . 

any documents that relate to-his half"'houi discussion with Inspector-Clark· about alleged ,unsafe . 

conditions at the mine. If Brannon gave Clark any'such doc'um~ts, he must so state and identify. 

them. If Brannon discussed any such documents with Clark; he must so state and identify them. 

(b) Identify each person who knows about the facts alleged. Complaint; Exh. A at 4. 

Answer: Brannon; Craig Clark ... ; Oppegard; Addington; Raleigh; Ross Kegan ... ; 

Hodges; Gary Harris ... ; and other MSHA personnel. Motion; Exh. C at 5. 

The company asserts that Brannon should identify the "other MSHA personnel." Motion 

at 5. 

Brannon does not specifically respond to the company's assertions. 

Ruling: The motion IS GRANTED. Within 20 days of the date of this Order, if 

Brannon knows the identities of any of the "other MSHA personnel," he must so state. If he does 

not know the identities, but simply assumes there are "other MSHA personnel" who know about 

the facts alleged, he must so state. 

Complaint at 5. 

31FMSHRC1526 
Interrogatory 8: With regard to the allegations in paragraphs 18-23 of the Complaint 

[

1

°][,] please: 

(a) Identify each document[,] including witness statements, which relates to the facts 

alleged. Motion; Exh. A at 4. 

Answer: Brannon objects to this interrogatory as being overly broad. For example, every 

document in MSHA's investigatory file and every document in this discrimination proceeding 

arguably "relate to the facts alleged" in,, 18-23. Motion; Exh. Cat 6. In addition, Panther's 

interviews of the employees who were present during all or part of the meeting between Shelton 

and Brannon "relate to the facts alleged.~' Id. .· ·. · 

The company argues that Brannon should be required to identify the documents as 

requested and should produce them. Motion 6. 

With regard to production, Brannon responds he does not have MSHA's investigatory 

file, and he does not have t}ie statements Panther took of its employees who were present during 

the meeting on February 28. Response 12. 

Ruling: Themotion·IS GRANT~D . . Brannonhas·.notresponded fully to the ... 

·interrogatory which simply asks. that Brannon identjfy.each:document, including wi~ss, ·· : , · :· 

·Statements;fwhieh relates to the facts alleged,il) paragraphs 18-23 of the Complaint. If there ate' 

documents within his knowledge that he can identify;arising out.of or:related to the February 28 

meeting~ Brannon must identify them withiri20·days ofthe·date-0fthis Order:.·.Forexample; .. ~:.-

.. ' . . . •;' ... ' , . 

. ' .. . . .... ' .. '. . i ~:· . . ... ~ ·. ~. ·. . 

1

°I>aragraphs 18 -23 of the Complaint relate to the alleged events of Saturday, February 

28, 2009. Brannon asserts he went undergrolind at 5 :55 a.m. .While traveling to his work area, 

Brannon was told by a mine foreman that Shelton, the mine superintendent, wanted to have a 

crew meeting, and Brannon returned to the surface. The meeting began at 6:40 a.m. in Shelton's 

office. Management officials and hourly employees were present. Brannon asserts that Shelton 

stated Brannon was "corrupting ... [the] day shift and ... [the] mine, that he wasn't performing 

his job satisfactorily, and that he was causing all of the mine's problems." Complaint at 6. The 

complaint further states that during the meeting, Shelton cursed Brannon, gave him a ''written 

warning" for his alleged unsatisfactory job performance, threatened to fire him, and transferred 

him from the day shift to the second shift effective Monday, March 2. Id. The Complaint quotes 

Shelton as telling Brannon, "Whenever a day shift job comes open, you can think to yourself, 'If 

I wasn't suing this company, that job might have been mine"'(Id.) and that as long as he worked 

for Panther or another Black Mountain company, he would remain on the second shift. 

Complaint at 6-7. Finally, the Complaint states that during the February 28 meeting, Shelton 

mentioned Craig Clark, the MSHA inspector with whom Brannon had spoken in the Harlan 

MSHA office on February 27, and that Shelton said he knew Brannon and Clark were related. 

Complaint at 7. The Complaint asserts that Shelton also said of Clark, "I can't stand the ground 

he walks on either." Id. 

31 FMSHRC 1527 
.. ~_i·r-. 

Brannon asserts Shelton gave him a "written warning"; yet he does not mention it in his answer 

to the interrogatory. 

(b) Identify each person who knows about the facts alleged. Motion; Exh. A at 4. 

Answer: Brannon; Shelton; all of the miners who were present during the "meeting"; 

Oppegard; Addingto11i-Hodges; Harris; MSHA's special investigators. Motion; Exh. Cat 6. 

The company argues that Brannon should be required to identify the miners at the 

meeting, as well as the special investigators. Motion at 6. 

Brannon responds that he has produced the names of those he knows who were present at 

the meeting and who are not miners, and that those he knows who are miners are protected by the · 

miner witness rule, Commission Rule 62 (29 C.F.R. §2700.62), and that under the rule he is not 

required to identify the miners until two days prior to the hearing. Resp. at 13. 

Ruling: The motiQn IS GRANTED IN·P ART. If Brannon knows the names and 

addresses of any MSHA special investigators:who know about what allegedly happened during 

the February 28 meeting, he must state as much .. He also·must state the names of the 

investigators. Hemust do these things·within20 days::ofthe·date·ofthis Order.· . '.-'.·· 

With regard to the identity of mfuers, .the names of those miners who Brannon knows; ' 

have kriowledge of the facts relating fo the February 28 meeting and who he does not intend to · 

. cal1 as witnesses mustbe disclosed to the companyby December.15, 2009, which is 30· days : · . , 

before the close of discovery. Between receiving the disclosure ·and the end of discovery, the· . 

company must complete any additional discovery with regard to the named miners. · · 

If there are miners who Brannon believes have knowledge ofthefacts relating to the 

February 28 meeting and who he intends to call as witnesses, he must disclose the names and 

contaet information of the witness miners to the company two business days before the hearing , II 

convenes. 29 C.F.R. § 2700.62. 

Interrogatoiy 9: With regard to the allegations in paragraphs 24-25 of the Complaint 

[

12

][,] please: 

11The hearing is presently scheduled to begin on March 2, 2010, which means the names 

must be disclosed by 8:30 a.m., Friday, February 26, 2010. 

12Paragraphs 24 and 25 of the Complaint state the complaint's "l't Cause of Action'': to 

wit, that the company ''verbally abused and threatened Brannon on February 28, 2009, because of 

Brannon's 'protected activities' as set forth in paragraphs 6, 7, 9, 11, 14, 15 and 16 of the 

complaint," and that the ''verbal abuse" and "threats" were "discriminatory and retaliatory" and 

in violation of section 105(c)(l) of the Act. 30 U.S.C. § 815(c)(l). Complaint at 7. 

31FMSHRC1528 
(a) Identify each document, including witness statements, which relates to the facts 

alleged. Motion; Exh. A at 4. 

Answer: Brannon objects to this interrogatory as being overly broad and redundant. 

Motion; Exh. C at 6. 

The company ar-gues Brannon has not responded to the interrogatory as asked and should 

be required to do so. Motion at 7. 

Brannon responds he rests on his previous responses. Resp. at 13. 

Ruling: The motion IS DENIED. Paragraphs 24 and 25 ofthe Complaint do not raise 

factual assertions new to the case. Rather, they present the legal conclusion that the company 

alleges results from previously asserted facts. Those facts have been the subject of prior 

interrogatories and rulings, and Brannon is correct in describing Interrogatory 9(a) as redundant. 

(b) Identify each p~rson who knows about the facts alleged. Motion at 5. 

Answer: Brannon objects to this interrogatory as "overly broad and redundant." Motion; 

. -Exh. C at 6. . . y; -.. ·. "· ·1. .. : .. ·,.. ,. 

: · - ' The company argues Brannon has Iiot respondedto the.interrogatory as asked and should . 

·be required-to do so. Motion at 7. .... - ., 

·Brannon responds that he rests on his previous responses .. Resp~ at 13 ... 

Ruling: For the reason given regarding Interrogatory 9( a), the motion IS DENIED with 

regard to Interrogatory 9(b ). 

( c) State all facts and identify all documents and persons with knowledge that support 

your allegations that Shelton verbally abused or threatened you because of''protected activities." 

Motion; Exh. A at 5. 

Answer: Brannon objects to this interrogatory as being overly broad and redundant. 

Without waiving said objection, Brannon states that the ''persons ... who support [his] 

allegations are unknown at this time. In addition, the names of any such witnesses need not be 

provided ... until two days before the hearing, pursuant to 20 C.F.R. § 2700.62." Motion; Exh. 

Cat 6-7. 

The company argues that Brannon has not responded to the interrogatory as asked and 

should be required to do so. Motion at 6-7. 

Brannon responds that be rests on the answers and objections given in his original 

31 FMSHRC 1529 
response. Resp. at 13 

Ruling: The motion IS DENIED with regard to Interrogatory 9( c ). Like Interrogatories 

9(a) and 9(b), Interrogatory 9(c) is redundant and need not be answered further. 

Interrogatories 10 and 11. The interrogatories will be ruled on together. 

Interrogatory 10: With regard to the allegations in paragraphs 26-27 of the Complaint 

[

13][,] please: 

(a) Identify each document, including witness statements, which relates to the facts 

alleged. 

(b) Identify each person who knows about the facts alleged. 

( c) Identify all facts, documents, and persons which have knowledge that support your 

allegations that Shelton g~ve you a written warning because of alleged ''protected activities." 

Motion; Exh. A 4-5. 

· ' Interrogatory 11: With regard to the allegations in paragraphs 28-29 of the Complaint 

[

14](,J please: 

. . . .. . ,'•' . ;.' f·t~'-· • . ·.• . . • ... 

(a) Identify each document, including witness statements, which relates to the· facts 

alleged. 

~ •·. , ... I ··. 

(b). Identify each person who knows about the facts alleged. ·· 

( c) Identify all facts, documents and persons with knowledge that support your 

allegations that Shelton transferred you to the zn<1 shift because of the alleged protected 

activities." Motion; Exh. A at 5-6. 

13Paragraphs 26 and 27 state the Complainant's ''2nc1 Cause of Action": to wit, that the 

company and Shelton issued a ''written warning" to Brannon on February 28 because of alleged 

''protected activities" as set forth in paragraphs 6,7, 9, 11, 14, 15, and 16, and that the ''written 

warning" was "discriminatory and retaliatory" and violated section 105(c)(l) of the Mine Act. 

Complaint at 7. 

14Paragraphs 28 and 29 state the complainant's "3nt Cause of Action": to wit, that 

effective March 2, 2009, the company and Shelton transferred Brannon to the second shift, that 

the second shift is a "less desirable shift," a shift that Brannon had told the company he preferred 

not to work, that the transfer took place because of "protected activities" set forth in paragraphs 

6, 7, 9, 11, 14, 15 and 16, that the transfer was "discriminatory and retaliatory" and that it 

violated section 105(c)(l) of the Mine Act. Complaint at 7-8. 

31 FMSHRC 1530 
Answer: Brannon objects that the interrogatories are ''very broad and redundant." 

Motion; Exh. C at 7. 

The company asserts that Brannon should be required to respond to the interrogatories as 

asked. Motion at 7. 

Brannon responds that he rests on his previous answers and objections. Resp. at 13. 

Ruling: The motion IS DENIED with regard to Interrogatories 10 and 1 L Paragraphs 

26, 27, 28 and 29 of the Complaint do no raise facts or assertions new to the case. Rather, they 

summarize the legal conclusions the Complainant alleges result :from previously asserted "facts." 

Those "facts" have been the subject of prior interrogatories and rulings, and Brannon is right to 

describe Interrogatories 10 and 11 as redundant. 

PRODUCTION OF DOCUMENTS 

The company has moved for the production of all documents "identified or referred to" in 

the Complainant's answers to the interrogatories. Motion at 7; see Motion; Exh. B. Pursuant to 

the rulings set forth above, within 20 days of the date of this Order, the Complainant shall 

produce all documents in }tis possession that are identified or refeyred to in· the responses .he has ·. 

been ordered to give. The documents shall be produced at the company's office: · 158 Central 

Street, Benham, Kentucky. ·.· .. 

PRODUCTION OF E-MAILS 

Brannon, through his attorney, Tony Oppegard, seeks to exclude :from production an e ... mail message Brannon sent to Oppegard on February 28, 2009. Oppegard maintains the 

message, a copy of which he has submitted for my review, memorializes Brannon's recollection 

of what was said during the meeting between Shelton and Brannon on the morning of February 

28. Oppegard invokes attorney-client privilege for the e-mail and essentially seeks an order 

barring its production. 

I have reviewed the message, the first part of which is dated February 28, 2009. In it 

Brannon describes a meeting, presumably on February 27, that he had with others at the mine. 

He describes his version of who said what to whom and he hypothesizes about actions the 

company might take. Later in the e-mail, Brannon states his understanding of the relationships of 

various miners. Finally, in the penultimate part of the e-mail, Brannon gives his recollection of a 

topic discussed on February 28 and who said what to whom about it. The e-mail closes with 

Brannon telling his attorney to call if his attorney has any questions. 

I conclude a majority of the February 28 e-mail is, as Complainant's attorney maintains, 

protected by the attorney-client privilege. The message relates to the confidential communication 

of information by a client to his lawyer to facilitate the rendering of legal services by the 

31FMSHRC1531 
attorney. The information is in the form of the client's recollection of conversations and facts 

that relate to issues in the case the attorney is presenting on the client's behalf. These parts of the 

e-mail are not subject to disclosure. 15 

However, three small portions of the e-mail fall outside the attorney-client privilege. 

They are Brannon's description of his understanding of the relationships of various persons who 

may or may not be inv..olved in the case, Brannon's suggestion his attorney call him if his attorney 

has questions, and Brannon's closing words and "signature."· These are subject to disclosure and 

must be produced. 

Accordingly, within 20 days of the date of this Order, Brannon SHALL PRODUCE for 

· the company at its Benham, Kentucky, office a redacted copy of the February 28 e-mail. Parts of 

the copy that are not redacted shall be: (l) the paragraph beginning with the name ~'Josh Napier'' 

and ending with the sentence, "So where's that leave me at lol"; (2) two sentences in the last 

paragraph, the first beginning "If you need any help ... " and the second beginning, ''Tony ... "; 

and (3) the last four words of the e-mail, those being Brannon's closing words and name. 

Distribution: .... 

David F. Barbour 

Administrative law Judge 

i ... ' 

MaryBeth Bemui, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212 

151 have placed the copy of the February 28 e-mail in the record under seal, where it is 

subject to review only by the Commission or another reviewing body. 

31FMSHRC1532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v . 

. PANTHER MINING , LLC. ~d, 

MARKD. SHELTON, , 

Respondent 

SECRETARY OF LABOR, · . . . 

on behalf ofBilL Y BRANNON, 

Complainant, 

v. 

PANTHER MINING, LLC, 

Respondent 

(202) 434-9980 

November 13, 2009 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. I Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

·_ .. No~ i Mine · 

·.·Mille JD 36~00017 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1259-D 

BARB CD 2009-09 

No. I Mine 

Mine ID 15-18198 

ORDER DENYING MOTION FOR PARTIAL SUMMARY DECISION 

The Respondent, Panther Mining, LLC (''Panther'' or "the company'') has moved for 

partial summary decision in the proceeding docketed as KENT 2009-302-D on the grounds that 

certain alleged activities claimed as a basis for discrimination under the Mine Act are not 

protected and that certain acts claimed as adverse actions do not justify Mine Act remedies. The 

Claimant opposes the motion. Commission Rule 67 provides a judge may grant summary 

decision as to all or part of a proceeding if there is no genuine issue as to any material fact and if 

the tnoving party is entitled to such a decision as a matter oflaw. 29 C.F .R. § 2700.67. Because 

I conclude genuine issues as to material facts remain, I cannot grant the motion. 

31FMSHRC1533 
THE COMPLAINT 

Docket No. KENT 2009-302-D is a discrimination case based on a complaintbrought 

under section 105(c)(3) of the Mine Act by Billy Brannon against Panther. The case has been 

consolidated with two related proceedings: KENT 2009-1225-D, a second section 105(c)(3) 

discrimination case brought by Brannon against Panther; and KENT 2009-1259-D, a section 

105( c )(2) discriminatien case brought by the Secretary on behalf of Brannon against Panther. 

The consolidated cases will be heard beginning on March 2, 2010. 

In KENT 2009-302-D, Brannon charges he was discriminated against because he engaged 

in protected activity by: (1) having his attorney write to minf? manag~ent of Black Mountain .. 

Resources (Black Mountain), the parent company of Cloverlick Coat Company, LLC 

(Cloverlick),where Brannon then worked, and inform management that Brannon would file a 

civil suit in Kentucky state court against Black Mountain and Cloverlick because Brannon was 

allegedly assaulted with a hammer by Robert Salyer, a Cloverlick foreman (Complaint at 1 6) 

[

1

]; (2) having his attorney write to the executive director of the Kentucky Office of Mine Safety 

and Licensing (OMSL) al_ld ask the OMSL to file disciplinary charges against Salyer because of 

Salyer's alleged assault on Brannon (Complaint at 17); (3) filing a discrimination complaint with 

MSHA regarding Panther's alleged discriminatory treatment because of Brannon's alleged 

documentation of safety problems with .a buggy Brannon was assi~ed to operate at Panther's· 

mine (Complaint at; 9); (4) having his attorney write to the MSHAdistrict manager regarding 

the company's alleged failure to provide-Brannon with required setf :cont3.ined, self-rescue . , . 

devices (SCSR's) (Complaint at 1 11); (5) filing the.instant discritpin~tioncomplaint with the. 1 

Commission (C~~plaintat if 14); (6) filing another discrimination complaint agairist the .,. 

company at the MSHA field office in Harlan, Kentucky and reporting to MSHA various~ unsafe . , 

conditions at the company's mine (Complaint at115); and (7)telling an MSHA inspect0r about'. 

various, unsafe conditions at the mine, including safety problems with the buggy he was assigned 

to operate. (Complaint at 1 16). See also Complaint at 1 17. 

Because of the way the complaint was worded, it was not clear to me whether Brannon 

was indeed claiming that all of the listed activities were protected under the Mine Act. I, 

therefore, requested he supplement the record by listing all of the activities for which he was 

claiming protection. Order to Supplement the Record (May 29, 2009). In response, Brannon 

revised his list of protected activities as follows: 

1st Cause of Action: 

[1] Complaining to management ... about ... Salyer assaulting him[;] 

1

Cloverlick and Panther are sister companies. Both are controlled by Black Mountain. 

After the alleged assault, Brannon was transferred from Cloverlick's mine to Panther's mine, 

where he continued to work until he was discharged. Following his discharge, he was 

economically reinstated pending the outcome of these cases. 

31FMSHRC1534 
[2] Notifying Rick Raleigh that Brannon would be filing a civil lawsuit 

against Cloverlick Coal ... , as set forth in 16 of the [c]omplaint[;] 

[3] Requesting OSML to file disciplinary charges against ... Salyer; as 

set forth in 17 of the [c]omplant[;] and 

[-4] The filing of Brannon's civil law suit as set forth in, 9 of[the 

· c ]omplaint[.] 

2nd Cause of Action: 

[ 1] [A ]11 of the protected activities set forth ill the "l st Cause of Action''[;] 

[2] [A]ccurately completing the forms and checklists set forth 1 12 of 

... [the c]omplaint[;2

] 

[3] .Complaining to ... management officials about having to walk 

from head drive to head drive, during which he did not have 

access to two SCSR's, as set forth in, 15 of the [c]omplaint.3 

Supplementation of Record (June 15, 2009) . 

. MOTION FORPARTIAL SUMMARY DECISION ·: 

···:·:, ._ ... 

, . Following the reeeipt ofBra.mlon'sstipplementation of the record, the company filed it~L. 

motion fot partial summary decision; For,.the·purpose8 of the motion, the company act;epts .as· ' 

· true the following facts as stated in the complaint and in the supplement: 

1. [On January 23, 2008,] Brannon was physically assaulted ... 

by a mine foreman, Salyer, while working at a mine 

operated by a Panther affiliate, [Cloverlick]. Complaint 

at14. 

2

Paragraph 12 of the complaint asserts that Brannon completed pre-printed company 

checklists regarding the condition of the battery operated buggy he was assigned, as well as the 

condition of the head drives and belt take up areas that he was responsible for maintaining and 

that in completing the forms he documents unsafe conditions on several occasions. Complaint at 

3. 

3

Paragraph 15 of the complaint asserts that having to walk from head drive to head drive 

was hazardous because Brannon was not always within 25 feet of two SCSR's as required by the 

company's SCSR storage plan and that Brannon complained about the hazard to the mine 

superintendent and to the mine foreman. Complaint at 4. 

31FMSHRC1535 
2. On April 25, 2008, Brannon's attorney infonned Cloverlick's 

representative, Raleigh, that Brannon intended to file suit 

against Cloverlick over the Salyer incident. Complaint at 

, 6. 

3. On April 29, 2009, Brannon's attorney wrote ... [the OMSL] 

requesting that it take certain actions against Salyer for 

the alleged assault, and OMSL conducted an investigation. 

Complaint at 1 7. 

4. On June 26, 2009, Brannon filed a civil suit against Cloverlick 

and Salyer in a Kentucky state court for compensatory and 

punitive damages for assault and battery and intentional infliction of emotional distress. Complaint at 1 9. 

In addition, the company notes Brannon's assertions that[,] because he engaged in 

protected activity, the company discriminated against him when .company officials "spoke 

disparagingly'' about him, encouraged his co-workers :''to shun him," and imposed ''niore : · 

onerous[,]unsafe working conditions on'him:~~ Complaint ,at ft 21, 22. 1 ~e company argues: : . 

that neither of the alleged protected activities nor the alleged discrimina~ocy acts are:covered·by, 

the Mine Act. · ·: .·· ·,. , ... · 

· THE-PARTIES' ARGUMENTS 

THE ASSAULT AND THE RESULTANT STATE MATTERS 

In the company's view, the fact that Brannon's attorney wrote to the OMSL, advised it of 

Salyer's assault and requested state disciplinary action against Salyer, as well as the fact the letter 

triggered an investigation of the incident by the OMSL, are not activities protected under the 

Mine Act. Motion at 3. Therefore, even if they resulted in management personnel speaking 

disparagingly about Brannon, urged his shunning and imposed unsafe working conditions on him 

(Complaint at ft 20, 22), the company's actions would not violate the Act, because the actions in 

which Brannon (and through Brannon, his attorney) engaged are not protected. The company 

states that section 105(c)(l) of the Act bars discrimination because, inter alia, a miner has filed 

or made a complaint ''under or related to the Act" (30 U.S.C. § 815(c)(l))[,] and Brannon's 

asserted protected actions arise under state law[,] not under the Mine Act. Motion at 3. 

Therefore, the threat to file a suit in state court based on the January 23, 2008, assault and the 

filing of the suit are not protected. Nor is writing to the state agency requesting it discipline 

Salyer and asking for and being granted an investigation of the Salyer/Brannon incident by the 

agency. In fact, according to the company, ''None of Brannon's actions alleged in the 

complaint's paragraph 4 [(Salyer's assault on Brannon)]; paragraph 6 [(Brannon's attorney 

31 FMSHRC 1536 
informing the company that Brannon would sue the company and Salyer over the assault)]; 

paragraph 7 [(the April 29, 2008 letter ofBrimnon's attorney to OMSL and the state agency's 

subsequent investigation)} are 'complaints under or related to' the Mine Act." Motion at 5; see 

also Resp. 's Supplemental Memo. at 2-3 (September 29, 2009). 

Brannon responds that the activities with which the company takes issue are protected 

under the Act and that Brannon '1Ieed not invoke the Mine Act to be protected under it." 

Response at 2. Brannon cites several Commission decisions which he argues establish the 

proposition that a miner's contacting. of state agencies regarding health or safety hazards is 

protected. Id. at 2-3. 

THE ALI.EGED ADVERSE ACTIONS 

The company also take8 issue with Brannon's charge in, 20 of the complaint that 

Brannon was discriminated against when company officials "spoke disparagingly" of him and 

"encouraged [his] co-workers to shun him" because of the above alleged, protected activities. 

Even if Brannon's activities are protected - and the company maintains they are not- in the 

company's view, speaking disparagingly and encouraging shunning are not types of conduct 

prohibited by section 105( c )~ This is because section 105( c) does not "address every slight or 

negative action which can occur in the workplace,, especially. those which are vague and ~- · '· 

-.,subjectiv..e[~}'such as encouraging shunning and talkingdi8paragingly. Motion at_6,.7; see.also · 

Resp.'s Slippleniental Memo. at 3; · · · : · ,_. 

Brannon, citing to Secretary of Labor on behalf of Jenkins v. ·Hecla-Day Mines ' ·, , . 

·Corporation, 6 FMSHRC 1842, 1847,.J.~8(Augustl984),·aigtle$;that'such actions can·indeed: 

constitute prohibited discriminatory actions in that they can subject a miner to a detriment in.bis ; ' ' . ' 

employment relationship. Resp: at· 6-7. He also notes that the Act should be construed liberally. 

Id. at 7-8 (quoting Secretary of Labor on behalf of Mark Gray v. North Star Mining, Inc., 21 

FMSHRC 1(January2005)). 

RULING 

PROTECTED ACTMTY 

As the company correctly points out, the Act bars discrimination because, inter alia, a 

miner has filed or made a complaint "under or related to the Act" (30 U.S.C. § 815(c)(l)). 

Beginning with its seminal case, Secretary of Labor on behalf of Pasula v. Consolidation Coal 

Co., 2 FMSHRC 2786 (October 1980), the Commission made clear that when an alleged 

protected activity is not expressly protected under the language of section 105( c )(1) of the Act -

for example, when the complaint does not assert he or she suffered discrimination because the 

complainant filed or made a safety complaint related to the Act and its implementing regulations, 

instituted proceedings or testified in proceedings brought under or related to the Act or suffered 

discrimination because of any other activity expressly permitted by the Act - the activity still 

31FMSHRC1537 
-!f-·. 

may be protected if it furthers the purpose of the Act, always being mindful that the Act "is 

remedial legislation, and is[,] therefore[,] to be liberally.construed." 2 FMSHRC at 2789. 

In legislative findings set forth at the beginning of the Act, Congress stated that the first 

priority of the mining industry must be the "health and safety of [the industry's] most precious 

resource-the miner'' (30 U.S.C. § 80l(a)) and that there is an "urgent need to provide more 

effective means and measures for improving ... practices in the Nation's mines in order to 

prevent ... serious physical harm [to miners]" 30 U.S.C. § 80l(c). Congress sought to 

implement these findings by directing the Secretary of Labor and the Secretary of Health 

Education and Welfare to develop and promulgate mandatory safety and health standards with 

which operators and miners must comply. 30 U.S.C. § 80l(g). It further afforded miners . 

specific protections. It did not~ however, afford miners protection :from allworkplace hazards. 

In this regard it is significant that under the Mine Act, unlike the OSH Act, operators are under 

no obligation to provide equipment and a place of employment ":free :from recognized hazards 

that are causing or are likely to cause ... serious physical harm." 29 U.S.C. § 654(a)(l ). As a 

consequence, conditions or practices may exist at a mine that are likely to cause or that actually 

cause serious physical harm yet, which do not contravene the Act. In like manner, miners may 

engage in activity that is· arguably related to safety but, because the activity is not ''under or 

related to the Act," the.activity is not protected. 30 U.S.C. § 815(c)(l). Thus, when ruling on 

whether an activity is protected, the _questiOn before ajudge is not whether the· activity ,is related . 

t~·safeiy~per se, but; as Pasu/a. teaches, whethet .it is related ~o the .~tivities specified in S¢ction. 

105( c )(1) or whether the activity furthers rights granted miners by the Act or otherwise -futlh~ · 

the purposes of the Act. 

Turning.to the motion at hand, the Complait1ant'.lists: as its f41;t cause of action :that 

Brannon complained .to ·mine management about Salyer' s alleged assault.: Supplement (June 15, 

2009). As noted, the company accepts the allegation as true. Therefore, the question is whether 

complaining to management about the assault is a protected activity. It may be or it may not be. 

Because I cannot determine the answer on the basis of the record as it now stands, I must deny 

the motion as it relates to the allegation and Brannon's first cause of action. In denying the 

motion, I am nonetheless cognizant that, in the abstract, complaining to mine management about 

an assault does not necessarily relate to complaining about a violation of a mandatory standard, 

instituting and testifying in a proceeding brought under the Act, being the subject of medical 

evaluations and potential transfer under a mandatory health standard, or to the exercise of any 

other right specifically granted by the Act or to furthering the Act's purposes. However, without 

hearing the evidence, I cannot rule out the fact that Brannon might be able to show that his 

complaint about the assault is related to his espousal of a specific right afforded by the Act; or 

that his complaint furthers rights guaranteed miners by the Actor furthers the Act's purposes. If 

he can do any of these things, he will establish he engaged in protected activity when he 

complained to management about the assault. Ifhe cannot, his assertion of protected activity 

related to the assault complaint will fail. Trial of the issue is necessary. 

31 FMSHRC 1538 
THE STATE COURT SUIT . AND 

CONTACTING THE STATE AGENCY 

In like manner, I conclude that while filing a civil suit in state court against a sister 

company and its foreman based on an assault and seeking state disciplinary action against the 

foreman because of the-assault - actions the company accepts as true - are not activities 

specifically protected wider the Act, at trial Brannon might be able to show that filing the suit 

against Salyer and Cloverlick and seeking state disciplinary action by the OMSL against Salyer 

for the assault is related to Brannon's espousal of a specific right afforded by the Act; or, 

alternatively, that filing the suit and seeking state discipline furthered rights guaranteed miners by 

the Act or otherwise furthered the Act's purposes. lfhe can do any of these things, he will 

establish he engaged in protected activity when he complained to management about the assault. 

If he cannot, his assertion of protected activity related to the assault and his complaint to OMSL 

will fail. The issue must be tried before it can be properly decided. 

In reaching this conclusion, I have fully considered the fact the Complainant brought suit 

in a state court and complained to a state agency and have not found either way of proceeding to 

run afoul of Brannon's claim of protected activity. It is not the venue that is determinative. It is 

whether .the activity relates to an activity specifically protected by the Act; whether the activity, 

r~lates to an, alleged violation of a mandatory safety o:i',health sta:mdar~ or .whether the activity..,.· 

otherwise furthers rights guar.anteed miners by the· Act or furthers the Act's purposes. There is·:. 

nothing novel or unprecedented in this conclusion. Commission judges long have held:that · 

otherwise protected activities does not lose Mine Act protection if it takes place in at a site not : 

regulated or authorized by the Act. See;' .e.g.~ John3on vi'Boren; Jnc.:;3 FMSHRC 926, 933 (April ·. 

· 1981) (Judge Lasher)( complaint to county health departmentprotected); see also; Response at 3~: ·· 

· n.2. 

ADVERSE ACTIONS 

While I agree with the company that section I 05( c) does not "address every slight or 

negative action which can occur in the workplace'' (Motion at 6-7), I disagree that actions such as 

"encouraging shunning" or "talk[ing] disparagingly'' necessarily fall outside of the Act's 

parameters. Id. They might or they might not. Although there is some disagreement in the 

federal circuits on this point, I concur with Brannon that the better view is, if the actions are 

motivated by a complainant's protected activity, they can constitute prohibited behavior if they 

subject a miner to a detriment in his or her employment relationship or if they chill the exercise 

of protected rights by a reasonable complainant and/or by the complainant's reasonable coworkers. Resp. at 6-7 (and cases cited therein). As with determining protected activity, the 

factual context within which the actions take place is vital. Therefore, on the basis of the present 

record, it would be premature to rule the actions of which the company complains are outside the 

boundaries of the Act. 

31 FMSHRC 1539 
ORDER 

For all of these reasons, the company's motion for partial summary decision IS DENIED . 

Distribution 

.P¢//d'r.:~ David F~ Barbour 

Administrative law Judge 

MaryBeth Bemui, U.S. Department of Labor, Office of the Solictor, 618 Church Street; Suite 

230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexingto~ KY 40522 

:" . .. _ .. ; ... ,· 

.. 

W<es Addingto~ Esq., ~ppalachian Citizens Law.Center,) 17 :Main Street, Whitesburg,. KY· 

:41'858 .. .. . . .. .· 

Stephen M. Hodges, Esq., Penn; Stuart & Eskridge; P. O.'Bo;ic2288, Abington, VA 24212 

31 FMSHRC 1540 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MJNING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC and 

MARKD. SHELTON, , ..... 

; :, ·.; .. ': .. , '. .. ).lespopd~~(.-

SECRETARY OF LABOR, 

· ~n bel:talf,of BILLY B:RANr"lON, 

Cpmplajnant,. . 

v. 

PANTHER MJNING, LLC, 

Respondent 

(202) 434-9980 . 

November 18, 2009 

. ~ .. ":. 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. l Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

No. l Mine. 

· :. ~. Mine .ID 36-00017 ' . , 

' . 

DISCRIMINATION PROCEEDING .. 

Docket No. KENT 2009-1259-D 

BARB CD 2009-09 

No.1 Mine 

Mine ID 15-18198 

ORDER GRANTING IN PART AND DENYING IN PART 

COMPLAINANT'S MOTION TO COMPEL 

In Docket No. KENT 2009-1225-D, the Complainant, Billy Brannon ("Brannon''), moves 

to compel the Respondents, Panther Mining, LLC ("Panther'' or the "company'') and Mark D. 

Shelton ("Shelton"), the superintendent of Panther's No. 1 mine, to answer Interrogatory 16 of 

Brannon's 1st Set of Interrogatories and to provide the documents sought in Request No. 16 of 

Brannon's 1st Request for Production of Documents. According to Brannon, Panther and Shelton 

have improperly failed to identify and produce documents that may come within the 

interrogatory. 

31FMSHRC1541 
Panther and Shelton objectto the interrogatory and request, and oppose the motion. They 

state Brannon's use of discovery is too broad and for the most part it is not directed at issues in 

the case. ·They also maintain they have already produced all documents relating to the allegations 

at issue and they need not produce more. For the reasons that follow, the motion IS GRANTED 

IN PART AND DENIED IN PART. 

THE COMPLAINT 

Docket No. KENT 2009-1225-D is a discrimination case based on a complaint brought 

under section 1 OS( c )(3) of the Mine Act by Brannon against Panther. The case has been 

consolidated with two related proceedings: KENT 2009-302-D, another section 105(c)(3) 

discrimination case brought by Brannon· against Panther; and KENT 2009-1259-D, a section 

105( c )(2) discrimination case brought by the Secretary on behalf of Brannon against Panther. 1 

The consolidated cases will be heard beginning on March 2, 2010. 

In Docket No. KENT 2009-1225-D, Brannon lists as activities leading to his alleged 

discriminatory treatment ~any of the activities set forth in his first filed complaint, Docket No. 

KENT 2009-302-D. He asserts, as he did in his first complaint, that these activities are 

"protected" under section 105(c) of the Act. What is new in DocketNo. KENT 2009-1225-:0 is 

Brannon's assertion of additional discriminatory treatment at the hands of Panther and-Shelton . 

. (Shelton was not named as a respondent irt the first;;.fil~d complaipt.) Brannon alleges that on' ... · .

. Saturday, February 28, 2009, he was underground when hew~ summoned to a meeting in .., ,. . 

. ·-Shelton's surface office. Those present were Shelton, the rest of the underground crew and . ', 

.. others from mine management.·. Complaint at ft 18, 19; Brannon asserts he was the ''main'· .•. ·· 

subject" of the meeting,·and that during the meeting Shelton told Brannon that Brannon was ... · 

"corrupting'' the shift and the mine, that he·was not doing his job satisfactorily and that he was 

the cause of all of the mine's problems. Id. at, 20. Brannon also asserts Shelton "cussed" him, 

threatened to fire him, gave him a written warning about his alleged unsatisfactory job 

performance and transferred him to the second shift effective the next Monday, March 2, 2009. 

Id. at , 21. Brannon quotes Shelton as telling him in effect that he would never return to the day 

shift because he was suing the company[2], and that from March 2 on, he would always work on . 

the second shift. 3 Finally, Brannon quotes Shelton as telling him that Shelton knew that Brannon 

had spoken with an MSHA inspector on the evening of February 27, and that he also knew 

1

Docket No. KENT 2009-1225-D is the second-filed of the three cases. 

2

Brannon previously filed a civil suit against a sister company of Panther's (Cloverlick 

Coal Company) and a Cloverlick supervisor (Robert Salyer) over Salyer's alleged assault on 

Brannon at the Cloverlick mine where Brannon then worked. See Docket No. KENT 2009-302-

D, Complaint at ft 6, 9. 

3 According to Brannon, Shelton knew that Brannon preferred to work on the first shift 

and considered second shift hours to be less desirable. Complaint at 7. 

31 FMSHRC 1542 
Brannon was related to the inspector. Of the inspector, Shelton allegedly said, "I can't stand the 

ground he walks on either.'..i Id. at, 22. 

The discriminatory actions to which Brannon charges he was subjected because of his 

alleged protected activities are the ''verbal abuse" and ''threats" he received from Shelton on 

February 28 (Complaint, 1st Cause of Action at, 24); the ''written warning" he received from 

Panther and Shelton on-February 28 (Id.; 2nd Cause of Action at 1 26); and his transfer to the 

second shift effective March 3, 2009. Id.; 3ro Cause of Action at 128. 

INTERROGATORY, REOUEST, AND ANSWER . 

Interrogatozy 16. With the exception of"the·Shelton meeting," please· state whether any 

Panther ... employees made any contemporaneous or non-contemporaneous notes regarding 

Brannon's job performance or non-contemporaneous notes regarding Brannon's job performance 

or any other event involving Brannon at the No. 1 mine prior to February 28, 2009. 

If the answer to this interrogatory is "yes,'' please see Request [No.] 16 in Brannon's 1st 

Request for production of Documents. Motion at 1-2. 

_, . Answer.', Objection to the.part'of the interrogatory.addressing '"any other event at the No~ .. 

1 rriine·prior to February 28~ ·2009" '.as vague,. overbroad,arufoot re38911al>ly calculated to '.lead to· ~ 

admissible· evidence. Without waiving its objection Panther states that notes concerning'. . :'' 

Bra1lnon's job performance were made on some occasions. ·Motion ~t 2 .. ·, '. 

·.. · Request No. 16. With the exception.of notes regarding ''the Shelton meeting,'' copies of 

· any and all contemporaneous or non-contemporaneous notes~·inade by any Panther employee· 

prior to February28, 2009, regarding Brannon'sjob-performance or any other event involving 

Brannon at the No. 1 mine. Motion at 2 

Answer. Objection as to "any other event involving Brannon at the No. 1 mine" as overly 

broad, unduly burdensome and not reasonably calculated to lead to admissible evidence. Further 

objected to ... the extent it would include communications between Panther's managers and 

their attorney. Further, this request overlaps with other requests. Without waiving its objection, 

Panther is providing herewith notes made by Panther's employees prior to February 28 ... 

regarding Brannon's job performance as documents 000801-000836. Motion at 2-3. 

4

Brannon maintains that on February 27, he went to the MSHA office in Harlan, 

Kentucky, to file a discrimination complaint with MSHA, and while at the office he spoke with 

an MSHA inspector for about one half hour. The alleged topic of their discussion was ''various 

unsafe conditions" at the mine. Complaint at -ii 16. 

31 FMSHRC 1543 
ARGUMENTS 

Brannon states that upon receipt of the company's answer to the interrogatory, his 

attorney "e-mailed" the attorney for Panther and Shelton and asked that his clients answer the 

interrogatory a:nd provide all of the requested documents or "at least state the specific nature of 

the documents that you are withholding." Motion at 3. When the company's and Shelton's 

attorney did not respond by the date Brannon's attorney specified, Brannon filed the motion to 

compel. 

Brannon argues it is relevant whether the company and/or its employees were keeping 

notes about Brannon - regardless of whether or not they were job-related- prior to the date of the 

February 28 meeting. According to Brannon, he is "entitled to know whether Panther was 

'building a case' against him in order to discharge him." Motion at 4. Brannon states he "would 

want to further delve into why employees were keeping notes about him (and at whose 

instruction)." Id. He also asserts he is entitled to know whether the company was keeping notes 

about other employees - or whether Brannon was being singled out for this treatment. Id. 

--

The company and Shelton argue. the motion should be denied. They object to answering 

the parts of the interrogatory and request relating to "any other event involving Brannon at the 

No. 1 mine;'~ · Interrogatory 16 .. They point out that nowhere·-in l:rls complaint does Brannon . ·,, · 

assert he w.a$:diseriminated against by having notes taken about: him :byPanther1mployees. By . 

asking for-.notes taken by anyone at the mine at any time prior to ·February 28, on any subject · -.. · 

involving Brannon, the Complainant is· casting a "dragnet"that would include things beyond the · 

scope of the complaint, which is about Brannon being ''written up" and transferred after the 

February 28.meeting. Opposition to .Motion at J.-4> Finally, the company notes it already has 

provided Brannon with 48 pages of notes taken.by various .employees concerning Brannon's job 

performance. Id. at 5. 

RULING 

Interrogatories must be reasonably related to the issues at hand. The issues as set forth 

by Brannon are whether he was discriminated against when he was "verbally abused and 

threatened" by Shelton at the February 28 meeting, was issued a ''written warning" by Panther 

and Shelton, and was transferred to the second shift (a less desirable shift that Brannon did not 

want) all because of his alleged protected activities. A topic discussed at the February 28 

meeting was Brannon's allegedly unsatisfactory job performance. One result of the meeting was_ 

a written warning issued to Brannon by Shelton about Brannon's performance. It is clear that 

Brannon's work performance and the company's and Shelton's perception of it are at issue in 

Docket No. KENT 2009-1225-D. To the extent the interrogatory asks the company and Shelton 

to identify and produce employees' notes referring to Brannon's work performance before 

February 28, 2009, the interrogatory is proper and must be answered. Further, any written notes 

identified in response to the interrogatory must be produced pursuant to Request 16. 

31 FMSHRC 1544 
Therefore, within 15 days of the date of this Order, notes made by Panther's employees 

relating to Brannon's job performance that the company and/or Shelton have MUST be 

described by the company for Brannon. Pursuant to Request 16, copies of the described notes 

MUST be produced to Brannon. If the company already has described. and turned over all of said 

notes, it may comply with the interrogatory and request by stating as much. 

If there are not~ made by company employees that relate to Brannon's pre-February 28 

job performance that the company claims are exempt from production because they are 

privileged, within 15 days of the date of this Order the company MUST identify the notes and 

submit copies to me for my review and state the grounds on which the company is claiming 

exemption from production. After reviewing the notes and considering the grounds, I will· rule as 

to whether or not the notes are subject to production. Any copies that I conclude are protected 

from production, I will place under seal in the record, where they will be subject to review by 

only the Cariunission or another reviewing body. 

As for the part of Interrogatory 16 that asks the company to state whether its employees 

made notes as to "any other event involving Brannon at the No. 1 mine prior to February 28, 

2009" .and the part of Request 16 that asks the company to produce any such notes, the Motion to 

Compel IS DENIED. The interrogatory andxequest are not targeted at issues alleged by .. '· 

,Brannon in his complaint and, thus, are not reasonably related to the--complaint. The .company is 

"right to describe the interrogatory. and'.tequest as "ov.erb~.c.t", 'Oppositioti-to Motio'tf at 3~ I 

';agree With the company that Brannon should nofbe allowed to lise discovery as a ~'dragnet" (Id.) 

·to obtain every note in the company's and Shelton's .possession relating to: "any other event 

. involving Brannon~" Interrogatory 16~: Were· such discovery allowed, the case would soon be 

·UI1IDanageable. ' · ·• ; · · · ~' · 

' : ·l ~ •• ": 

The company IS ORDERED to respond to futerrogatory 16 and Request 16 ONLY as 

. set forth above. 

David F~ Barbour 

Administrative law Judge 

31 FMSHRC 1545 
Distribution: (Certified Mail) 

MaryBeth Bemui, U.S. Department ofLab~r, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P .0. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212 

/ej 

31 FMSHRC 1546 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 1s1" S~ Suite 443 

Denver, CO 80202-2500 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTII 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

GILBERT DEVELOPMENT CORP., 

Respondent 

December 2, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-201-M 

A.C. No. 42-02159-130699 

. Mine: SR9/ Harrisburg Pit 

ORDER DENYING RESPONDENT'S MOTION TO REOPEN RECORD 

TO SUBMIT WITNESSES TO POLYGRAPH EXAMINATION 

Respondent filed a·motion to reopen the record in this proceeding for the limited purpose 

of subjecting several fact witnesses to a polygraph examination. It states that it filed the motion 

because there were so many conflicting facts· presented at the hearing .. The Secretary opposes the 

motion because neither the Commission's procedural rules nor the Federat Rules of Civil .. · 

Procedure sanction the mtroduction of post-trial evidence to bolsfer wttitess credibilify. ··Iii · . 

addition, she argues that Respondent did not set forth any spedat circumstances that would 

justify the use of polygraph testing. For the reasons discussed.below, I deny Respondent's 

motion. · .· . 

Commission Procedural Rule 55 empowers Commissionjlidges to, among other things; 

regulate the course of hearings, rule on offers of proof and receive relevant evidence, and dispose 

of procedural motions. 29 C.F.R. § 2700.55. This authority can be used, in appropriate 

circumstances, to reopen the record for the submission of new evidence. 

The Commission addressed a motion to reopen the record in Kerr-McGee Coal Corp., 15 

FMSHRC 352 (March 1993). In that case, the mine operator sought Commission review ofa 

judge's order denying the operator's motion to reopen the record. Relying on Rule 59 of the 

Federal Rules of Civil Procedure, the judge denied the motion. On review, the Commission held 

that the decision to grant or deny a motion to reopen is "committed to the sound discretion of the 

trialjudge." 15 FMSHRC at 357. The Commission affirmed the judge's decision and set forth 

three factors that should be considered. These factors are: (1) the timeliness of the motion; (2) 

the character of the newly proffered evidence; and (3) the effect of granting the motion. Id. See 

also, Meek v. Essroc Corp. 15 FMSHRC 606, 614 (April 1993). 

Although the motion in this case was filed soon after the close of the hearing, I find that, 

based on the character of the newly proffered evidence, the motion should be denied. Four 

witnesses testified for each party. Both parties were given the opportunity to cross-examine the 

31FMSHRC1547 
opposition's witnesses and to test their credibility. Commission administrative law judges act as 

the finders of fact in Commission proceedings and, in doing so, make necessary credibility 

determinations. The judge in this case is charged with making these determinations based on his 

observations of the witnesses and the testimony presented. The Supreme Court, in United States 

v. Scheffer, questioned the reliability of polygraph evidence. 523 U.S. 303, 309 (1998). In 

addition, federal courts have expressed their disfavor of the use of polygraph evidence. See, e.g., 

United States v. Swazye, 378 F.3d 834, 837 (8th Cir. 2004) (The court stated that "[w]hen two 

witnesses contradict each other, juries, not polygraph tests, determine who is testifying 

truthfully."). Judges act as juries in Commission proceedings. Conducting polygraph tests 

would "interfere with the [judge's] role in making credibility determinations" and has the 

potential to raise collateral issues.- SEC v, .((opsky, 586 F. Supp. 2d 1077, 1080 (E.D. Mo.) 

'ccitiilg the opinion of four justices in Scheffer, 523 U.S. at 313-315). The effect of granting the 

motion would -be to further delay the proceedings to allow for the submission of p0lygraph 

evidence. This evidence would be of little value, given the unreliability of polygraph tests, and 

would conflict with and add confusion to credibility determinations made by the judge. 

For the reasons set forth above, the motion to reopen is DENIED. 

Distribution: 

Richard W. Mannfug 

Administrative Law Judge 

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 

Bryan J. Pattison, Esq., Durham, Jones & Pinegar, P.C., 192 East 200 North, Third Floor, St. 

George, UT 84770 

RWM 

31 FMSHRC 1548 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

U.S. CUSTOM HOUSE 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

December 3, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2008-479 

A.C. No. 12-02147-150573 

. v. 

BLACK BEAUTY COAL COMP ANY, 

Respondent Mine: Francisco 

DECISION DENYING MOTION TO APPROVESETTLEMENT 

···; ' 

Before: Judge Miller 

1bis case is before me upon a petition for assessment ofcivil penalty under section 

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

The Secretary of Labor ("Secretary'') filed a motion to approve settlement. The case involves : · 

twelve citations issued under section 104(a) of the Act with a total penalty assessed at $104,464. 

In denying the Secretary's request to settle this matter, I take into consideration the enormous 

volume of cases pending and the pressure on the CLR's to settle cases and move them along. 

However, I have signed off on a number of settlements with this particular mine operator in the 

past few weeks and did so reluctantly on many of them for that reason. The settlements have 

given more .tht,m. generous reductions in penalties and modifications of citations with little 

explanation. 

I conclude that the reduced penalties proposed by the Secretary against Black Beauty 

Coal Company (''Black Beauty'') would not adequately effectuate ''the deterrent" purpose 

underlying the Act's penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 

(Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). I reach this decision based upon my 

conclusion that the penalties proposed by the Secretary are greater than an 800.lct reduction of the 

original penalties and such a reduction encourages mine operators to contest the penalties in the 

hope of receiving such a reduction. The fact that a mine operator can obtain such a drastic 

reduction does not encourage the mine to comply with.the requirements of the Act. 

31FMSHRC1549 
The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R,_ § 2700.28. The Act requires, that "in assessing civil monetary penalties, 

the Commission [ AI.J] shall consider" six statutory penalty criteria: · 

[ 1] the operator's history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the 

operator was negligent, [ 4] the effect on the operator's ability to continue in · ·· · 

business, [ 5] the gravity of the violation, and [ 6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 u.s.c. § 820(i). 

In keeping with this statutory requirement, the Commission has held that "findings of 

fact ontμe statutory peilaltycriteria must be made" by itsj~dges. ·Sellersburg Stone Cq., 5 . 

FMSHRC at 292. Once findings on.the statutory criteria ha\Tebeen made,. a judge'.s penalty : .· .. 

assessment for a particular violation is an exercise of discretion, which is bowided by proper -· '. ; . , · 

·consideration of the statutory critetla and the deterrentpurposes (}ftJieAct. Id. at294; Cantera · 

Green, 22. f'MSHRC 616, 620 (May 2000). In exercising this discretion, the Commission has , 

· teeeritly ~Iterated that in determining the amount of a p·enalty, a]udge is not bound by the · ·· ~ . . . .. 

,-peil~lfyrecommended bytbe Secretary. Spartan Mining.Co., 30FMSHRC 699, 723 (Aug. · > 

. 200_8). · The Colnmission also emphasized that when a penalty determination "substanti~lly • · 

. diverge[ s] from those originally proposed, it behooves the ... judge[] to provide a sufficient 

explanation of the bases underlying the penalties assessed. Id. The Commission warned in 

Sellersburg that without an explanation for such a divergence, the ~'credibility of the 

administrative scheme providing for the increase or lowering of penalties after contest may be 

jeopardized by an appearance of arbitrariness." 5 FMSHR.C at 293. The information provided 

by the Secretary in this case does not allow me to provide a sufficient explanation for the penalty 

reduction. 

The Secretary's representative in this case has proposed to modify six of the twelve 

citations to non-S&S violations, to vacate two citations, and to modify the gravity of citations. 

The operator has agreed to pay one violation as issued. The overall proposal calls for a 

reduction in the penalty from $104,464 to $20,394. On the penalty amount issue alone this 

proposal is not appropriate. In addition to the total penalty I also base my decision on the lack of 

factual bases to modify six violations to non-S&S and modify the gravity of three others. The 

Secretary included in its proposal that the Francisco mine had "28 previous violations in the 15 

month period preceding these violations" and that the payment of $20,394 will not affect the 

mine's ability to continue in business. While I can accept the stipulation regarding the mine's 

ability to pay, the history of violations was not included and was in error. First, the history 

31FMSHRC1550 
included only 15 months, and, second, it did not take into consideration the more than 25 

violations issued between the date of the first citation in this docket and the date of the most 

recent citation. 

Citation No. 6672623 charges a violation of§ 77.502 of the Secretary's regulations 

because the "outer insulation on the cord that supplies 110 V.A.C power to the shop lighthas a 

cut/tear exposing the b@,fe inner conductor leads in one location. The shop light was in service in 

the train load out facility." The inspector determined that the violation was S&S, marked the 

gravity as ''reasonably likely" to result in a "fatal" irijury, and found moderate negligence. The 

Secretary proposes to modify the violation to non-S&S and reduce the penalty from $13,268 to 

$807 because the electrical circuit was protected with a ground fault circuit interrupter breaker. 

A number of cases-have found similar violations to be significant and substantial. Ely Fuel Coal 

Co., 13 FMSHRC 488 (Mar. 1991)(AU)(An admitted violation of§ 77.502-2 for failure to· 

conduct a monthly examination of electrical equipment was S&S because serious injuries can 

occur from malfunctioning electrical equipment.); Laurel Run Mining Co., 11 FMSHRC 1815 

(Sept. 1989)(AU)(Violation of§ 77.502 was significant and substantial because of risk of 

electrical malfunctions.). 

Citation No. 4263736 charges a violation of§ 77.1606(c) because the "No.303--013 

Driltech drillbeing used in the No. 4 pit was not being maintained ina safe condition. When .. 

inspected the :<>ffside camera was found defective, preventing the operator from seemg anything 

along the offside 'area of the drill." The-inspector determined thatthe violation was S&S~ . ! ·. . · 

marked the gravity as ''reasonably likely'; to result in. "lost workdays," and found mOderate · 

negligence;. The Secretary proposes to modify :the violation to non·S&S, With low negligence. 

and reducb the penalty from $3,143 to $28$. The Secretary states that even with .the inopCrable-i . 

camera, the operator had useable mirrors.and an ·audible warning system· to prevent an .a~ideilt. '· 

A number of deeisions have deemed a violation of this standard to be significant and substantial~ 

S&M Construction Inc., 19 FMSHRC 566 (Mar. 1997)(ALT XAn area of missing tread on the rear 

tire of a trailer attached to a truck was an S&S and "tmwammtable" vioJation of§ 77.1606(c).); Quarto· 

Mining Co., 15 FMSHRC 1311 (June 1993)(AU). rev. denied (July 16, 1993)(Malfunctioning 

steering wheel was an S&S violation of§ 77.1606(c).); Triple B Corp., 8 FMSHRC 833 (May 

l 986)(AU)(Citation for violation of §7 7 .1606( c) due to cracked rear view mirror and excessive 

play in mine truck's steering system was found to be significant and substantial because cracked 

mirrors could cause driver to back into pedestrians or over highwall, and steering defect made it 

extremely difficult to handle truck; both violations were reasonably likely to cause serious or 

fatal injuries.). 

Citation No. 6672625 charges a violation of§ 77 .1104 because "accumulations of 

combustible material in the form of oil and oil soaked fines was allowed to accumulate on the 

Taylor fork truck 450 Co. #320-036. These accumulations ranged in depth from 1/8" to 1/4" 

approximately. Engine oil was leaking out of the valve cover gasket area and running on the 

exhaust manifold and down the side of the engine block to the belly pan." The inspector 

determined that the violation was S&S, marked the gravity as ''reasonably likely'' to result in 

"lost workdays," and found moderate negligence. The Secretary has proposed to modify the · 

citation to non-S&S and reduce the penalty from $3, 143 to $634 because if a fire were to occur, 

31FMSHRC1551 
the operator could easily stop and exit the equipment. Accumulation violations may potentially 

be detennined to be significant and su'6stantial. Little Sandy Coat Co., 17 FMSHRC 1638 

(l 995)(ALJ). (A surface coal mine operator's admitted violation of combustible materials 

standard, § 77 .1104, was S&S. An inspector observed several leaks in the hydraulic system of a 

Hitachi shovel used to load overburden into haulage trucks, and also observed pools of oil under 

and around the operator's cab and oil on the equipment's frame. There was a reasonable 

likelihood of an ignitiQn of the "extensive" accumulations of oil and grease.). 

Citation No. 6672746 charges a violation of § 77.1711 and states "[n]o person shall 

smoke or use an open flame where such practice may cause a fire or explosion. A miner was 

observed smoking in the immediate area of flammable and combustible material located on the 

·company grease truck" The items on the grease truck included starting fluid, kerosene~ grease~ · .. · 

oil and fuel soaked rags, and other oils. The fuel truck was within 30 feet of the grease truck and 

bothwere servicing a dozer. The inspector detennined that the violation was s&s; marked the . 

gravity as "highly likely" to result in a "fatal" injury, and found high negligence. The Secretary 

has proposed to modify the citation to non-S&S with moderate negligence and reduce the 

penalty from $42,944 to $362, because it is not likely that the combustible materials would be 

ignited by someone smoking next to the vehicle. The Secretary proposes to reduce the 

negligence because management was not aware of the violation. The reduction in penalty is 

extreme, as is the modification from S&S to a non-S&S vfolation without some· further:, ,;,·: 

· · explanation regarding the facts and the. factual basis for making such modification. . . . . . · .. . · J .:.' ~ 

·Citation No. 6672771 charges .a violatioirof§ 7J.205(b) because the travelwayin the 

conveyor fail tunnel was strewn with debris creatingatrip hazard near the belt and rollers. The . 

. in5pectordetermiiled that the violation.was S&S~ markCd,the gravity ·as ''reasoiiablyJikely'r. to , · .. 

. · result in "lostworkdays," and found moderate negligence... The Secretary proposes to m.ooify the, 

violation to non•S&S with a reduction in penalty from $3,996 to $807 because the "single 

obstacle could be easily .recognized and avoided."· Travelways can be particularly hazardous in· 

mining conditions, and violations of regulations pertaining to them have often been found to be 

significant and substantial. Summit Anthracite Inc., 29 FMSHRC 1062 (Nov. 2007)(AU)(An 

operator committed an S&S violation of§ 77 .205(b ), for failing to keep a travelway clear of 

stumbling hazards in the generator building.);· Cyprus Emerald Resources Corp., 11 FMSHRC 

2750 (Dec. 1989)(AU)(Where coal refuse and hoses were found in preparation plant and refuse 

bin building walkways which provided access to areas where persons were required to work or 

travel, a S&S violation of §77.205(b) occurred.); Consolidation Coal Co., 8 FMSHRC 1735 

(Nov. 1986}(AIJ)(Obvious, long-term accumulation of slurry and water on floor of slurry pump 

house where miners were required to work caused slipping hazard, is significant and substantial 

violation of§ 77 .205(b }, and was due to unwarrantable failure of operation to comply with 

standard.); J.A.D. Coal Co., 7 FMSHRC 733 (May 1985)(AU)(Violation of§ 77.205(b) was the 

result of high negligence because travelway leading to head roller of belt was covered 

completely with loose coal and it appeared that coal accumulations had been present for several 

days. The violation was serious because it exposed employees to fall hazard which could have 

resulted in serious injury or death.). 

31 FMSHRC 1552 
Citation No. 6672786 charges a violation of§ 77. l 608(b) because the spoil dump site 

near the employee parking lot "has an extensive cracking." The cracks measure up to 18 inches 

wide by 27 inches deep, for a distance of approximately 200 feet. The inspector observed a 

dump truck back up between the crack and the face of the dump site. There was the potential for 

a failure of the ground to support the weight of the dump truck. The inspector determined that 

the violation was S&S, marked the gravity as ''reasonably likely'' to result in a "fatal" injury, and 

found moderate neglig~ce. The Secretary proposes to modify the citation to non-S&S with a 

reduction in penalty from $3,405 to $207 because the condition was "not likely to result in an 

accident considering the size and location of the crack in relation to the size and location of the 

highwall." The decisions bear out the fact that spoil dumps with cracks may well be cited as 

significantand substantial. Kerry Coal Co . ., 17 FMSHRC 2110 (Nov. 1995)(AIJ)(A surf~e 

coal mine operator committed an S&S:violation of§ 77.1:002;'-which requires "necessary , · · . . . 

precautions" to minimize the possibility of spoil material rolling into the pit when box cuts are 

made. The unstable condition of the cited spoil banks showed that the operator had not taken 

')iecessary precautions," and falling material inCluded two- to three-foot rocks. The company's 

MSHA-approved ground control limit on the angle of spoil banks was clearly a "precaution" the 

company was required to observe under § 77.1002, and the inspector testified the ·spoil banks 

were not sloped at a 60-degree angle as required by the plan, but were cut close to a 90-degree 

angle. The violation was S&S because a front-end loader was operating under one spoil bank as 

. roeks and other material fell near the machine. The violation also ·resulted from high negligence 

· because the company knew.or :should have known of the -sloping·requirements and the; · / . . . . . . ,·. 

"dangerous angle of the walls was obvious."); Cyprus Emerald Resources Corp., 20 ·FMSHRC · .. 

79fi (Aug. :1998), aff'g in part; vacating and remanding in part, andtev 'g in·part 17 'FMSHRC 

2086 (Nov. 1995)(ALJ)(An operator committed an S&S violation.of§ 77.1608(b) in.connection .. 

· with an April 1993 refuse pile collapse, based .on. photographs· showing tire 'tracks •going.to the. . . · . 

edge ofthe:area that broke away and the testimony of atmck driver.); Bobet Mining~ ' · 

Construction Co., TFMSHRC 1175 (Aug. 1985)(AIJ)(Operator committed anS&S Violation;of 

§ 77 .1608 where inspector observed truck dumping too close to edge of embankment in presence 

of foreman. The haZard was reasonably likely to cause serious injury and the foreman's failure 

to abate hazard demonstrated serious lack of reasonable care.); Zapata Coal Corp., 6 FMSHRC 

2639 (Nov. 1984)(ALJ)(Dumping of coal 30 feet beyond edge of high wall is significant and 

substantial violation of§ 77 .1608(b) requirement that dumping occur at safe distance back from 

edge of bank which may fail to support truck weight.). 

The Secretary has not provided sufficient information to determine if the six citations 

listed above should be modified to non-S&S violations. A significant and substantial violation is 

described in section 104( d)(l) of the Act as a violation "of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety or health hazard." 

30 U.S.C. § 814(d)(l). A violation is properly designated S&S "if, based upon the particular 

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

to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat 'l Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

31FMSHRC1553 
In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--contributed to by the violation; (3) 

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

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

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987)(approving 

Mathie3'Criteria). · · ·· · <· ·· · 

In U.S. Steel Mining Co., Inc., the Commission provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

,with the language of section 104( d)(l ), it is the contribution of a Violation to the 

cause and effect of a hazard. that must be significant and ·substantial. U.S~ Steel • · 

·Min~ng:Co., Inc., 6FMSHRC·1866', . .1868'{August 1984); .US. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). . . '· . . ·: : . . ' :~ 

7- FMSHRC 1125,· 1129 (Aug;.1985)~ 

'. ( r:~ ·~; . " ' ._ ,;;., .. ! '··-: c 

This evaluation is made in consideration ofthe length of time· that the violative condition, ·· · ... 

existed prior to the citation and the time it would have existedifnormal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 

FMSHRC at 1574. 

In the Motion to Approve Settlement the Secretary does not state a factual basis for 

concluding that the alleged violation did not present a substantial possibility of resulting in 

injury within the context of continued normal mining operations. For example, in the electrical 

violations listed above, the Secretary does not present a factual bases to show that there was not 

a possibility that a miner would suffer electric shock if the condition continued as it was found. 

Similarly, in Citation 6672746 the Secretary did not provide a bases to understand why it is 

believed that someone smoking in an area where flammable or combustible materials were, does 

not present a possibility of a fire or explosion and of someone being injured as a result. There is 

no basis presented to reduce the original penalty for this citation from $42,944 to $362. The 

Secretary gives me little information to believe that an accident will not occur as alleged in 

Citation No. 6672786. The same is true of each violation that is proposed to be modified to nonS&S. 

31FMSHRC1554 
Citation No. 6672765 charges a violation of§ 77.210(b) because a delivery driver was 

observed standing in.the bed of a pickUp ttuck while a miner was hoisting a 1100 pound load 

from the bed of the pickup. The driver had both hands on the load and no tag-line in place as the 

load was removed from the bed. The inspector determined that the violation was S&S and 

marked the gravity as "reasonably likely'' to result in a "fatal" injury. The Secretary has 

proposed to modify the violation to ''permanently disabling" with a reduction in penalty from 

$3,996 to $1,795. The.reason given is that the injuries would not be fatal due to the position 

while the load was being moved. 

Citation No. 6672787 charges a violation of§ 77.1608( e) because no berm, backstop or 

spotter was in place at the spoil dumpsite. The inspector determined that the violation was S&S, 

marked the gravity as; ''reasonably likely" to resUJ.t-in "fatal" injuries, and found moderate · 

negligence. The Secretary proposes to modify the violation to "lost work day'' with a reduction 

in penalty from $3,405 to $1,026 because the truck would "have gotten stuck in the soft dump 

site material before it could have backed off the highwall." 

Citation No. 6672772 charges a violation of§ 77.502 because an electrical box. "[was] 

not being maintained in safe condition." When the electrician opened the box, water poured out, 

and it was seen that water and coal dust had accumulated inside the box where energized wires 

were spliced. The inspector determined that.the violation was S&S, marked the· gravity as. 

"reasonably likely" to result in a "fatal" injmy; and found '.t_noderate negligence; .. The Secretary 

proposes to,modifythe citation to "lostworkdays~twith areduction·inpenalty from $3,996 to·:.· ... 

$1,203 because several safety features would have to fail-before a miner would be fatally·· 

injured. . ··'.,; "!' . . . '.: . ... .. ~ .:· , 

The above three citations are proposed to be;change<Lbymodifying·the gravity ftom"fatal ·. 

to some other designation without providing a basis for doing so. The facts as. set forth in the , 

citations provide·a basis for designating the·injuries as fatal on their face. The Secretary has not 

provided sufficient information to prove otherwise. 

The two citations that are proposed to be vacated are Citation No. 6672747 for a grease 

truck with flammable materials stored without a proper warning sign, and Citation No .. 6672749 

for lack of task training of the miner who was caught smoking near eombustible material. The 

Secretary vacated these citations because ''the cited condition was not found to be a violation of 

any applicable standard." 

31FMSHRC1555 
I have considered the representations and documentation submitted and I conclude that 

the proposed settlement is not appropriate under the criteria set forth in section 11 O(i) of the Act. 

The motion to approve settlement is DENIED. 

; •··• f, ... > ;' • ' .•• 

Distributio:ii:~ · .... ' . •J' 

Edward Ritchie, Conference and Litigation Representative, Mine Safety and Health 

Administration, U.S. Department of Labor, 2300 Willow-Street, Suite 200,Vincennes,IN 47591 

,Chad Barras, Midwest Safety Director, Black Beauty Coal Company; 7100 Eagle Crest Blvd, 

Suite 100, Evansville, IN 47715 

/ate 

31FMSHRC1556 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY A VENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION(MSHA), 

Petitioner 

v. 

LITTS & SON STONE COMPANY,· 

Respondent 

December 18, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2009-273-M 

A. C. No. 36-09655-170239-02 

Mine: Buckhorn 

ORDER GRANTING SECRETARY'S MOTION TO DISMISS COUNTERCLAIM 

This case c~ncerns a proposal for assessment of civil· penalty filed pursuant to 

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

815(d), seeking a civil penalty assessment for 13 alleged violations of mandatory safety 

standards :found in Parts 47 and 5(j, Title 30, Code of Federal Regulations. The Secretary filed·· 

the Petition for Assessment of Civil Pellalty on February 19~ 2009, and the Respondent ansW'ered . : 

and asserted a counterclaim ·on March· 19~ 2009. The Seeretary has filed a motion to .dismiss the 

Respondent's counterclaim. 

The respondent alleges thdt•it.has been the victini of a senes of retaliatory and/or. 

vindictive actions since the spring a.,nd SU11liner ·of 2008 by MSHA inspectors, in violation of the: 

First Amendment fo the Con8tltutlori .. Answer al 6. 'In the Secretary's motion, she moves that 

the counterclaim be dismissed. She asserts the Commission does not have jurisdiction to decide 

the issue, or, if it does, that the Respondent has failed to state a cognizable cause of action. 

Motion at 3. 

In ruling on the Secretary's motion, it is important to first identify the relief the 

Respondent seeks. The Respondent argues that because employees of the agency created by the 

Act (MSHA) deprived the company of the full exercise of the company's First Amendment 

rights, I should enjoin the agency "from taking further vindictive retaliatory actions against [the 

Respondent]" and direct MSHA to assign "a fair and impartial inspector ... to [the 

Repsondent' s] facilities." Answer at 6-7. I cannot fulfill these requests. As counsel for the 

Secretary rightly points out, my jurisdiction is restricted to that which is granted by the Act. 

Motion at 2. Administrative agencies such as the Commission have only the jurisdiction that 

Congress gives. This core principle of administrative law has long been recognized as 

applicable to the Commission and its judges. Kaiser Coal Corp., I 0 FMSHRC 1165, 1169 

{September 1988). While the Act establishes specific enforcement proceedings, contest 

proceedings and other forms of action over which the Commission presides, nowhere does it 

grant to the Commission and its judges the authority to rule on and to direct MSHA's internal 

31FMSHRC1557 
personnel policies and practices. Because there is no way under the Act that I can grant what the 

Respondent asks, the counterclaim must be dismissed. See Agronics, Inc., CENT 98-151-M 

(Order Denying Motion to Distlliss and Remand) (August 21, 1998) (Chief ALJ Merlin) 

(unpublished). This is not to say the Respondent is without a remedy. 1 It is simply to say that 

the remedy it seeks is not available before the Commission. Accordingly, the Secretary's 

Motion to Dismiss Alleged Counterclaim IS GRANTED, and the parties are directed to comply 

with the Order to Confer and Report dated November S, 2009. 

Distribution: 

J)t;V;tf 

David 

Administrative 

F. 

f. 

Barbour 

~ 

Law Judge 

Jodeen Hobbs, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 

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

John G. Dean, Esq., Elliott, Greenleaf &·Dean, 201 Penn Av:enue, Suite 202, Scranton, PA 

18503. 

/ej 

1 A long line of cases recognizes a right of action in the federal courts for damages when . 

agents of the government abridge constitutional rights. See, e.g. Bivens v. Six Narcotic Agents, 

403 U.S. 388 (1971) (and cases arising thereunder). 

31FMSHRC1558 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TM sTReer. SUITE 443 

DENVER, CO 80202-2500 

303-844-35n/FAX 303-844-5268 

December 10, 2009 

MOUNTAIN COAL COMPANY, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALIB 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALIB 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN COAL COMPANY, LLC, 

Respondent 

. ·

CONTEST PROCEEDING 

Docket No. WEST 2007-409-R 

Citation No. 7291353; 3/26/2007 

West Elk Mine 

Mine Id. 05-03672 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2008-129 

A.C. No. 05-03672-128598 

West Elk Mine· . 

ORDER CORRECTING CLERICAL .ERROR IN DECISION 

On October 16, 2009, I issued a decision on the merits in these cases. (31 FMSHRC 

1220). In the decision, I held that the Secretary established a violation of section 75.1725(a), as 

alleged in Citation No. 7291353, but I determined that the Secretary did not establish that the 

violation was of a significant and substantial nature (''S&S"). 

The Secretary has filed a motion to correct a clerical error in the decision. She moves that 

the decision be amended to reflect the fact that, at the start of the hearing, she agreed to amend 

the citation to delete the S&S determination. (Tr. 7). She asks that my discussion of the S&S 

issue on page 19 of the decision be modified to reflect her concession that the citation was not 

S&S. (31 FMSHRC 1238). In response to the motion, Mountain Coal stated that it did not 

object to the motion but asked that the amended decision include my discussion of the gravity 

criterion and some of the S&S discussion. The Secretary does not object to this request. 

31 FMSHRC 1559 
For good cause shown, the motion is GRANTED, in accordance with the authority 

vested tome under 29 C.F.R. §2700.69(c). Page 19 of my October 16, 2009, decision (31 

FMSHRC 1238) is STRICKEN :from the decision and is replaced by.the modified page attached 

to this order. In all other respects, the decision in these cases remains unchanged. 

Distribution: 

Richard w. Manning 

Administrative Law Judge 

Laura E .. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-

1958 

Mary Forrest-Doyle, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22nc1 Floor, Arlington, VA 22209 

RWM 

31 FMSHRC 1560 
MOUNTAIN COAL COMPANY, WEST 2007-409-R & WEST 2008-129 

This page replaces page 19 of the decision issued by Judge Manning on October 16, 2009 

31FMSHRC1220, 1238 

hose replacement policies to make sure that the policies are sound and are understood by its 

maintenance personnel..- It also may want to consider reducing its policies to writing. 

2. Sipificant and Substantial; Gravitt; Neeli&ence. 

At the start of the hearing, the Secretary agreed to modify the citation by deleting the 

inspector's S&S determination. (Tr. 7). I find that this modification is reasonable. The hoses 

were in the back walkway, which is behind the leg cylinders. Miners do not work in that area. 

The back walkway is a confined area where it is difficult to move around.5 The most common 

reason for anyone to be in the back walkway is to conduct a pennissibility inspection, when the 

supply hoses are not pressurized, or to replace a hose. As stated above, miners are generally not 

near the supply hoses wheq they are pressurized as the shields are moved. Angel testified that a 

miner would have to be within inches of a hose in order to sustain an injury from the resulting 

spray. The return hydraulic hoses, which are always pressurized during production, operate at 

100. to 200 psi. The return hoses were rated at 5,800 psi and they have fourlayers of wire . 

braiding. In addition, the miners working along the long wall typically wear protective clothing, , 

as described above. This clothing would protect them from injury. I credit the testimony of 

Kunde on this issue. 

I find that the gravity was low because, if a hose were to leak hydrclulic fluid, it is unlikely ·. 

that anyone would be seriously injured as a result. An injury from a flwd· injection or from a 

whipping hose was unlikely. The most likely injury would be from a slip and fall on a deck plate 

that was covered with spilled hydraulic fluid. 

I also find that Mountain Coal's negligence was low. I credit the company~s evidence 

that it has been using the same criteria for determining when a hydraulic hose should be replaced. 

5 In a previous decision, I determined that "[ e ]ven a small individual would have difficulty 

walking along the 'back walkway' [in a longwall section at the West Elk Mine]." Mountain 

Coal Co., 26 FMSHRC 853, 855 (Nov. 2004). That finding is equally applicable here. 

31FMSHRC19 



Federal Mine Safety & Health Review Commission 

Calendar Year 2009 Index 

This index of decisions and orders issued during the calendar year 2009 is divided into three parts: 

decisions and orders issued by the Commission, followed by decisions issued by the Administrative 

Law Judges (ALls) andlinally, orders issued by the AUs. The listings include date ofissuance, 

titles, docket numbers, and page numbers in the Federal Mine Safety and Health Review 

Commission Decisions Bluebook (FMSHRC), volume 31. Where the Secretary of Labor, Mine 

Safety and Health Administration is a party, listings are under the name of the opposing party. 

01-13-2009 

06-01-2009 

11-16-2009 

01-22-2009 

05-20-2009 

Ol-15-2009 

11-13-2009 

07-07-2009 

07-21-2009 

09-29-2009 

09-24-2009 

10-28.:.2009 

09-30-2009 

04-27-2009 

12-03-2009 

09-17-2009 

11-13-2009 

03-31-2009 

04-02-2009 

10-08-2009 

04-17-2009 

07-09-2009 

02-11-2009 

04-23-2009 

05-14-2009 

12-10-2009 

JANUARY THROUGH DECEMBER 2009 

Commission Decisions and Orders 

18 Karat, fuc. 

ABC Gravel, fuc. 

Active Minerals futernational, LLC. 

Alaska Mechanical, fuc. 

Alex Energy, fuc. 

Ancient Sun, fuc. 

American Mobile Aggregate ·crushing 

Armstrong Coal Company 

Ash Grove Cement Company 

A Mining Group, LLC. 

August Winter & Sons, fuc. 

B & H Transfer Company 

The Banner Company, LLC. 

The Banner Company, LLC. 

Banner Blue Coal Company 

Barrick Goldstrike Mines, fuc. 

Bayer Construction Co., Inc. 

Big Ridge, Inc. 

Big Ridge, fuc. 

Big River Mining, LLC. 

Big River Mining, LLC. 

Big River Mining. LLC. (reconsideration) 

Bill Baltrusch Construction, Inc. 

Black Butte Coal Company 

Black Mountain Industrial Minerals, LLC. 

Blue Haven Energy, Inc. 

1 

PENN 2008-580 

WEST 2009-468-M 

SE 2010-38-M 

WEST 2008-1582-M. 

WEV A 2009-662 

PENN 2008-581 

CENT 2009-660-M .. 

KENT 2009-419 

CENT 2009-786-M 

SE 2009-505-M 

LAKE 2009-447-M 

SE 2009-802-M 

VA 2009-90 

VA 2008-384 

VA 2009-3 

WEST 2009-932-M 

CENT 2009-716-M 

LAKE 2008-516 

LAKE 2008-515 

WEVA 2009-1669 

WEVA2009-l 

WEVA2009-l 

WEST 2009-203-M 

WEST 2009-166 

WEST 2009-422-M 

WEVA 2010-144 

Pg. 20 

Pg. 569 

Pg.1300, 

Pg~.-,54 

· Pg:-540 

· .. pg.o 38 

Pg.1281 

pg .. 745 

Pg. 797 

Pg. 1040 

·pg. 1032 

Pg. 1107 

Pg. 1046 

Pg. 410 

Pg. 1320 

Pg. 1013 

Pg. 1285 

Pg. 362 

Pg. 366 

Pg. 1070 

Pg. 396 

Pg. 749 

Pg. 121 

Pg. 400 

Pg. 534 

Pg. 1336 
05-11-2009 Brahma Group, Inc. 

07-24-2009 Bresee Trucking Co., Inc. 

02-02-2009 Brody Mining, LLC. 

05-21-2009 Brooks Run Mining Co., LLC. 

09-23-2009 Bucyrus Field Services, Inc. 

06-29-2009 Canyon Fuel Company, LLC. 

11-13-2009 Canneuse Lime, Inc. 

05-06-2009 Castle Wood Products 

10-29-2009 Cessford Construction Company 

01-15-2009 Champlain Stone, Ltd. 

08-13-2009 Chemical Lime Company of Alabama 

04-27-2009 Cintas Corporation 

04-07-2009 Clean Energy Mining Company 

10-08-2009 Clean Energy Mining Company 

07-14-2009 Coal River Mining, LLC. 

12-16-2009 Consol Pennsylvania Coal Company 

10-30-2009 Consolidation Coal Company 

12-15-2009 Consolidation Coal Company 

08-13-2009 Consolidated Container Co., LP 

· 01-13-2009 ·' '·Craig &Company, LLC. . .·. 

·07-20-2009 · ~c.S:A. Mining Incorporated' ·_.. 

09-23-2009 ' Daroy Sanders; fonnerly employed 

. · By Natural Materials, LLC. 

61-08-2009 ' Delta Sand & Gravel Co. 

11-18-2009 · Delta Sand & Gravel Co. (reconsideration) 

·06-16-2009 . Dennis Demers Trucking 

07-14-2009 Detroit Salt Company, LLC. 

05-06-2009 Dickenson-Russell Coal Co., LLC. 

06-10-2009 Dickenson-Russell Coal Company 

03-13-2009 Double Bonus Coal Company, et al. 

03-19-2009 Double Bonus Coal Company 

08-25-2009 Double Bonus Coal Company 

01-15-2009 Dusek Sand & Gravel, Inc. 

01-13-2009 Dynatec Mining Corporation 

01-15-2009 Dyno Nobel, Inc. 

08-04-2009 Eastern Associated Coal, LLC. 

02-04-2009 Endurance Mining 

02-03-2009 Estacada Rock Products 

04-17-2009 Extra Energy, Inc. 

05-06-2009 Fisher Sand & Gravel Company 

11-13-2009 Fisher Sand & Gravel Company 

06-15-2009 Freedom Energy Mining Co. 

08-25-2009 Freedom Energy Mining Co. 

2 

WEST 2009-109-M 

VA 2009-46 

WEY A 2008-1861 

WEY A 2009-1628 

CENT 2009-433 

WEST 2009-232 

LAKE 2010-12-M 

WEST 2008-1389-M 

CENT 2009-787-M 

YORK 2008-238-M 

SE 2009-552-M 

LAKE 2008-594-M 

KENT 2008-1458 . 

KENT 2009-925 

WEY A 2009-966 

PENN 2009-546 

VA 2009-314 

WEY A 2009-1871 

SE 2009-551-M 

SE 2008-960-M, 

KENT 2009-573 

CENT 2009-420-M 

·WEST 2008-1103-M 

WEST 2009..-1103-M 

YORK2009-44-M ·. 

LAKE 2009-388-M 

VA 2008-395 

VA 2009-175 

WEY A 2008-879 

WEY A 2009-810 

WEY A 2008-879 

. CENT 2008-357-M 

SE 2008 .. 990-M 

KENT 2008-1580 

WEY A 2009-1562 

WEY A 2008-267 

WEST 2008-812-M 

WEY A 2009-44 

WEST 2009-132-M 

CENT 2009'" 758-M 

KENT 2009-705 

KENT 2009-924 

: ·~ 

Pg. 527 

Pg. 804 

Pg. 95 

Pg. 547 

Pg. 1039 

Pg. 615 

Pg. 1291 

Pg. 510 

Pg. 1110 

Pg. 44 

Pg. 858 

Pg. 403 

Pg. 370 

Pg. 1058 

Pg. 756 

Pg. 1373 

Pg. 1123 

Pg. 1370 

Pg. 855 

Pg.'!23·. 

Pg.r 773 ·.~ 

Pg. 1022. 

'p~ 4 

· .. Pg .. 1303: 

Pg.-·602. 

Pg. 759 

Pg. 507 

Pg. 586 

Pg. 339 

Pg. 358 

Pg. 886 

Pg. 32 

Pg. 26 

Pg. 35 

Pg. 818 

Pg. 105 

Pg. 99 

Pg. 377 

Pg. 513 

Pg. 1288 

Pg. 592 

Pg. 883 
02-02-2009 Freeman Rock, Inc. 

04-17-2009 Graymont (PA) Inc. 

05-14-2009 Hancock Materials, Inc. 

09-14-2009 Hanson Aggregates Midwest, Inc. 

11-16-2009 Hanson Aggregates Midwest, LLC. 

04-27-2009 Harvest-Time Coal, Inc. 

09-14-2009 Heritage-Coal & Natural Resources, LLC 

01-22-2009 Highland.Mining Company, LLC. 

11-30-2009 Highland Mining Company 

10-22-2009 Holcim (US), Inc. 

06-01-2009 Hopkins County Coal, LLC. 

10-30-2009 ·'Hoover, Inc. 

12-14-2009 IO Coal Company, Inc. 

02-17-2009 ISP Minerals, Inc. 

02-22-2009 J & T Services 

10-13-2009 Jacob Mining Company, LLC. 

12-10-2009 JohnR. Hurley 

10-13-2009 KenAmerican Resources, Inc. 

10-08-2009 Knife River 

10-13~2009 Knox Creek Coal Corporation 

06-24-2009. KWV Operations, LLC. 

05-27-2009 LafargeAggregates Southeast, Inc~·~: · 

02-04.:.2009 .Lafarge Building Materials, Inc. 

06-01-2009 . ·Lapp & Sons 

01-29-2009 , /Lawrence Pendley(Sec~·Laboro/b/o) v. 

01-12-2009 

07-20-2009 

10-22-2009 

10-30-2009 

07-20-2009 

06-15-2009 

06-02-2009 

04-17-2009 

06-10-2009 

01-13-2009 

01-27-2009 

09-23-2009 

12-10-2009 

08-28-2009 

04-17-2009 

07-17-2009 

. ·: . Highland Mining Company . 

Left Fork Mining Company 

Left Fork Mining Company (reconsideration) 

Lige Williamson (Sec. Labor o/b/o) v. 

CAM Mining, LLC. 

Liggett Mining, LLC 

Lehigh Northeast Cement Co. 

Lehigh Southwest Cement Company 

Lehigh Southwest Cement Company 

Lueders Limestone, LP 

Long Branch Energy 

Lopke Quarries, Inc. 

Luminant Mining Company, LLC. 

Luminant Mining Company, LLC. 

M & P Services, Inc. 

Mach Mining, LLC. 

Manalapan Mining Company 

Manalapan Mining Company (reconsideration) 

3 

WEST 2008-1548-M 

PENN 2008-467-M 

WEST 2009-423-M 

KENT 2009-376-M 

LAKE 2010-27-M 

WEV A 2008-965 

YORK 2009-143 

KENT2009-1 

WEVA2009-110 

SE 2009-472-M 

KENT 2009-740 

SE 2009-600-M 

WEVA2007-293 · 

CENT 2008-714-M 

SE 2008-49-M 

WEV A 2009-1348 

VA 2010-7 

KENT 2009-1060 

. WEST2009-1083-M 

VA 2009-354 

WEVA 2009-1038 

SE 2009-707-M 

SE 2009-95-M 

WEST 2009-533-M 

KENT 2008,..506-D · 

KENT 2008-1111 

KENT 2009-1111 

KENT 2009-1428-D 

KENT2010-l 

YORK 2009-83-M 

WEST 2009-505-M 

WEST 2009-512-M 

CENT 2009-96-M 

WEVA 2009-43 

KENT 2008-1561-M 

CENT 2008-726 

CENT 2009-155 

WEV A 2009-1983 

LAKE 2009-395-R 

KENT2009-9 

KENT2009-9 

Pg. 91 

Pg. 374 

Pg. 537 

Pg. 1006 

Pg. 1294 

Pg. 418 

Pg. 1009 

Pg. 51 

Pg. 1313 

Pg. 1094 

Pg. 566 

PgJ1117· 

Pg. 1346 

Pg. 130 

Pg. 118 

Pg. 1081 

Pg. 1331 

Pg. 1074 

Pg. 1064 

, :Pg . .1078 · 

:.·.Pg •. 612 · 

Pg. 555; 

P..g. 102 

. Pg •. 572.· 

. ·.·: 

. Pg. 61.,: 

Pg. 8 

Pg. 780 

Pg. 1085 

Pg. 1113 

Pg. 793 

Pg. 595 

Pg. 578 

Pg. 386 

Pg. 589 

Pg. 17 

Pg. 58 

Pg. 1026 

Pg. 1343 

Pg. 918 

Pg. 392 

Pg. 765 
01-08-2009 Martin Marietta Materials; Inc. . SE 2008-991-M 

07-31-2009 McCoy Elkhorn Coal Corporation KENT 2009-1128 

08-27-2009 Mettiki Coal, WV, LLC. WEVA 2009-423 

03-18-2009 Michael Cline YORK2009-25-M 

08-19-2009 Michael Diamond KENT 2009-1224 

07-31.:.2009 Michael Will emp. by Chemical Lime of AL SE 2009-550-M 

06-01-2009 Mingo £ogan Coal Company WEVA 2009-835 

10-30-2009 Moltan Company SE 2009-601-M 

06-17-2009 Moraine Materials Company LAKE 2009-271-M 

11-16-2009 Moran Environmental Recovery SE 2009-687-M 

05-06-2009 Morris, Inc. CENT 2009-1 

07-20-2009 Morris~· Inc. (second filing) CENT 2009-1 · · · 

12-10-2009 Morton Salt Division/Morton International CENT 2010-30-M. · 

05-06-2009 Mosaic Phosphates Company SE 2009-93-M 

03-12-2009 Mt. View Resources WEV A 2008-1853 

04-28-2009 Muht-Hei, Inc./Camp Materials WEST 2008-1455-M 

08-13-2009 Myrick Construction Co., Inc. SE 2008-961-M 

10-26-2009 National Cement Co. Of California WEST 2004-182-RM 

03-12-2009 Nelson Quarries, Inc. CENT 2006-151-Mi 

07-31-2009 ?Newmont USA Limited· WEST 2009-395 .. M 

08'..13-2009 .. Newmont USA Limited . ' WEST 2009-396-M 

09-30-2009 . ··Northern Lakes Concrete fuc~ · · · ·LAKE 2009-349-M 

02-11-2009 ·.Oak Grove Resources, LLC... SE 2009-20 

08-27-2009 ·. Oglebay Norton Industrial Sands, fuc. LAKE 2009-143-M 

07-14-2009 Oil-DriProductionCoinpany SE .· 2009-293-M . 

08-28-2009 . · Oil-Dri Production (reconsideration) SE 2009-293-M 

04-27-2009 Old Dominion Energy, Inc. · VA 2008-227 

09-24-2009 Old Dominion Energy, fuc. VA 2009-270 

10-28-2009 Oldcastle Stone Products SE 2009-173-M 

02-17-2009 Omis Ricky Smith KENT 2008-1482 

06-10-2009 Oxford Mining Co., LLC. LAKE 2009-381-M 

08-19-2009 Pacific Rock Products, LLC. WEST 2009-1003-M 

08-13-2009 Panzer Coal fuc. KENT 2009-1032 

04-23-2009 Penn Virginia Resources Partners VA 2008-369 

08-19-2009 Penny Creek Quarry, LLC. WEST 2009-1016-M 

09-09-2009 Peter J. Phillips v. A & S Construction Co. WEST 2008-1057-DM 

01-22-2009 Petra Materials CENT 2008-735-M 

07-20-2009 Petroleum Fueling, fuc. WEVA 2009-1035-M 

08-26-2009 Pine Ridge Coal Company, LLC. WEVA 2009-1592 

10-30-2009 Pine Ridge Coal Company, LLC. (Reconsideration)WEVA 2009-1592 

09-20-2009 Pitlick & Wick, fuc. LAKE 2008-345-M 

05-06-2009 Precision Drilling, fuc. SE 2009-26-M 

05-06-2009 Premier Chemical, LLC. WEST 2009-200-M 

4 

Pg. 1 

Pg. 815 

Pg. 911 

Pg. 354 

Pg. 870 

Pg. 812 

Pg. 575 

Pg. 1120 

Pg. 606 

Pg.1297 

Pg. 495 

Pg. •789 ·· · 

. Pg. 1328 

Pg. 504 

Pg. 335 

Pg. 422 

Pg. 867 

Pg.1100 

Pg. 318 

. Pg. S08 

·Pg. 862 · 

·. Pg.1043 

Pg,; 115. 

Pg •. 908 · 

·Pg. 762.· 

., Pg~· 914. 

Pg~ 414 

Pg.1036 

Pg. 1103 

Pg. 133 

Pg. 581 

Pg. 877 

Pg. 852 

Pg. 389 

Pg. 880 

Pg. 975 

Pg. 47 

Pg. 777 

Pg. 905 

Pg. 1131 

Pg.1016 

Pg. 501 

Pg. 516 
07-24-2009 

05-27-2009 

12-10-2009 

10-13-2009 

10-08-2009 

07-17-2009 

08-11-2009 

05-14-2009 

03-04-2009 

02-05-2009 

04-17-2009 

08-06-2009 

03-18-2009 

05-28-2009 

03-18-2009 

12-10-2009 

08-19-2009 

02-12-2009 

01-12-2009 

05-20-2009 

07-20-2009 

07-13-2009 

02-05-2009 

10-08-2009 

05-07-2009 

01-13-2009 

10-30-2009 

06-10-2009 

04-27-2009 

12-14-2009 

01-15-2009 

06-15-2009 

10-22-2009 

11-30-2009 

05-22-2009 

02-11-2009 

05-11-2009 

03-18-2009 

06-24-2009 

Quality Aggregates, Inc. 

Randy Pack 

Ray County Stone Producers, LLC. 

Riverton Investment Corporation 

Robert Gatlin (Sec. Labor o/b/o) v. 

KenAmerican Resources, Inc. 

Rock N Road Quarry 

Rockhouse Energy Mining Co. 

Ron Powell emp.by Oakridge Sand & Gravel 

Rowan Construction Company 

Ruscat Enterprises, Inc. 

S&SRock 

SCP Investments, LLC. 

Shelton Brothers Enterprises 

Sidney Coal Company 

Sierra Cascade, LLC. 

Solvay Cheipicals 

South Ridge Granite Quarry 

Southern. Industrial Constructors 

Southwest Rock Products, LLC. 

Spartan Mining Company, Inc. 

• Spartan Mining Company, Inc. (refile) 

Stacy Lynn Coal, LLC. 

Standard Sand & Silica Company 

. Taft Production Company 

Thomas J. Smith, Inc. 

Twentymile Coal Company 

U.S. Silver-Idaho, Inc. 

Unimin Corporation 

Webster County Coal, LLC. 

Webster County Coal, LLC. 

West Coast Aggregates, Inc. 

West Virginia Mine Power, Inc. 

Westside Trucking 

Wingdale Materials, LLC. 

WKJ Contractor's Inc. 

Wolf Run Mining Company 

XMV,Inc. 

XMV,Jnc. 

Youngman Rock, Inc. 

5 

PENN 2009-408-M 

KENT 2009-517 

CENT 2010-88-M 

WEVA 2008-1449-M 

Pg. 800 

Pg. 559 

Pg.1339 

Pg. 1067 

KENT 2009-1418-D Pg. 1050 

WEST 2008-561-M Pg. 769 

KENT 2008-1363 Pg. 847 

WEST 2009-344-M Pg. 531 

SE 2009-125-M Pg. 315 

WEV A 2008-143 Pg. 112 

SE 2009-116-M Pg. 383 

SE 2006-148-M Pg. 821 

KENT 2008-1407 Pg. 347 

KENT 2009-862 Pg. 562 

WEST 2008-1408-M Pg. 344 

WEST 2009-1099-M Pg. 1334 

SE 2009-625-M Pg. 873 

SE 2008-923-M Pg. 127 

WEST 2009-51-M i ·. Pg. 14 '· 

WEVA2009-764 · · :Pg . . 543 ·. 

WEV A 2009-764 Pg. 785 ' 

WEV A 2009-1036 ·. . Pg.-. 752 

SE 2008-546-M Pg~ 108 · 

WEST 2009-567-M Pgd06l 

PENN 2008-102 ·Pg. 520 . 

WEST 2008-991 Pg. 29 

WEST 2009-1216 Pg. 1127 

SE 2009-362-M Pg. 583 

KENT 2008-1465 Pg. 406 

KENT 2009-167 Pg. 1367 

WEST 2008-1496-M Pg. 41 

WEV A 2009-934 Pg. 599 

WEST 2009-650-M Pg. 1097 

YORK 2009-135-M Pg. 1307 

KENT 2009-624 Pg. 551 

WEV A 2008-259 Pg. 124 

WEV A 2008-1783 Pg. 523 

WEV A 2009-47 Pg. 350 

CENT 2009-347~M Pg. 609 
Administrative Law Judge Decisions and Orders 

10-26-2009 

11-23-2009 

07-28-2009 

04-03-2009 

02-11-2009 

03-04-2009 

09-04-2009 

Abundance Coal, Inc. 

Beylund Construction, Inc. 

Black :tJjlls Bentonite, LLC. 

Brooks Run Mining Co., LLC. 

CCC Group, Inc. 

Cargill Deicing Technology 

Charles Scott Howard (Sec. Labor o/b/o ) v. 

Cumberland River Coal Co., Inc. 

11-04-2009 Cloverlick Coal Co., LLC. 

01-28-2009 Coal River Mining, LLC. 

11-18-2009 Consolidation Coal Company 

01-02-2009 Cumberland Coal Resources, LP 

09-09-2009 Cumberland Coal Resources, LP 

02-19-2009 D & H Gravel 

06-17-2009 Dynamic Energy, Inc. 

08-21-2009 ~ast Tennessee Zinc Company,LLC .. 

, 01.-27-2009 : ;Eastern Associated Coal ·Corporation 

04:-02-2009 ·~Excel Minin~ LLC. ·,: · 

12-28-2009 Freedom Energy Mining Co. 

02-12-2009 Holcirn (US) Incorporated . · 

09:-30-2009 i .Ja~on Turner v. National Cem~nt Co. 

10-08-2009 

07-30-2009 

10-29-2009 

12-03-2009 

09-30-2009 

10-26-2009 

11-30-2009 

07-14-2009 

09-17-2009 

12-02-2009 

08-07-2009 

03-05-2009 

10-16-2009 

. , :· Of California . 

·Jim Walter Resources, Inc. 

Jim Walter Resources, Inc. 

Johnson Paving Company, et al. 

Knox Creek Coal Corporation 

Lige Williamson (Sec. Labor o/b/o) v. 

CAM Mining, LLC. 

Lige Williamson (Sec. Labor o/b/o) v .. 

CAM Mining, LLC. (on remand) 

Lige Williamson (Sec. Labor o/b/o) v. 

Cam Mining, LLC. (amendment) 

Marfork Coal Company 

Mark Gray (Sec. Labor o/b/o) v. 

North Fork Coal Corporation 

Mark Gray (Sec. Labor o/b/o) v. 

North Fork Coal Corp. (dissolving Order) 

Milestone Materials, Div. of Mathy Constr. 

Moltan Company, LP 

Mountain Coal Company, LLC. 

6 

KENT 2010-5-R 

CENT 2008-721-M 

WEST 2008-660-M 

WEVA 2007-701 

WEST 2008-124 

LAKE 2009-314-DM 

KENT 2009-1427-D 

KENT 2008-497 

WEV A 2006-125-R 

WEVA 2007-712 

PENN 2008-51-R 

PENN 2009-189 

LAKE 2008-219-M 

WEV A 2007-448-R 

SE 2008-130-M 

WEVA 2007-335. 

KENT 2008-122. 

KENT 2008-778 

SE 2007-154-M 

WEST 2006-568-DM 

SE 2007-264 

SE 2009-500-R 

SE 2007-128-M 

VA 2007-15-R 

KENT 2009-1428-D 

KENT 2009-1428-D 

KENT 2009-1428-D 

WEVA 2008-564-R 

KENT 2009-1429-D 

KENT 2009-1429-D 

LAKE 2009-432-RM 

SE 2006-227-M 

WEST 2007-409-R 

Pg. 1241 

Pg. 1410 

Pg. 926 

Pg. 445 

Pg. 261 

Pg. 425 

Pg. 1135 

Pg. 1377 

Pg. 192 

Pg. 1398 

Pg. 137 

Pg. 1147 

Pg .. 272 

Pg. 670 

Pg. 941 

Pg. :174. · 

.Pg; >473,'. 

Pg,1475 

Pg~ ·269, ·. 

. .! . 

Pg. 1179 

. Pg.1208 

Pg. 932 

Pg. 1246 

Pg. 1422 

Pg.1187 

Pg. 1270 

Pg. 1418 

Pg. 923 

Pg. 1167 

Pg. 1420 

Pg. 939 

Pg. 427 

Pg. 1220 
06-23-2009 Nally & Hamilton Enterp:tjses, Inc. 

04-10-2009 Nelson Quarries, Inc. 

09-24-2009 Nichols Construction, Inc. 

09-08-2009 North Fork Coal Corporation 

03-17-2009 Ohio County Coal Company 

12-31-2009 Ohio County Coal Company 

12-11-2009 Patriot Mining, LLC. 

11-05-2009 Peter J. Phillips v. A & S Construction Co. 

02-04-2009 Powder River Coal, LLC. 

01-26-2009 R S & W Coal Company, et al. 

12-09-2009 R S & W Coal Company 

02-02-2009 · ··Richard Jaimes v~ Stansley Mineral Res.· 

05-19.;;2009 Rockhouse Energy Mining Co. 

12-09-2009 Royal Cement Company 

12-31-2009 Shelby Mining Company 

10-08-2009 Sidney Coal Company 

05-12-2009 Tri-Star Mitring, Inc. 

05-29-2009 Vumun Edwurd Jaxun v. Asarco, LLC. 

06-29-2009 Walter Kuhl 

09-19~~009 Weathertcm Contracting Co., Inc. 

·· · ·02~04~2009 \Vebster County Coal, LLC. 

". 02-26-"2009 · WestRidgeResotirces~ Inc. 

· 06-10-2009 · · Wolf Run Mining Company 

·. 04~ 15-2009 Wolf Run Mining Company 

02-26-2009 . Wolf Run Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-29-2009 Billy Brannon v. Panther Mining, LLC. 

07-24-2009 Billy Brannon v. Panther Mining, LLC. 

08-31-2009 Billy Brannon v. Panther Mining, LLC. 

09-10-2009 Billy Brannon v. Panther Mining, Inc. 

11-06-2009 Billy Brannon v. Panther Mining, LLC. 

11-13-2009 Billy Brannon v. Panther Mining, LLC. 

11-18-2009 Billy Brannon v. Panther Mining, LLC. 

12-03-2009 Black Beauty Coal Company 

0~30-2009 Black Panther Mining, LLC. 

06-30-2009 Five Star Mining, Inc. 

06-30-2009 Five Star Mining, Inc. 

06-30-2009 Five Star Mining, Inc. 

7 

KENT 2008-712 

CENT 2008-287-M 

VA 2007-17-R 

KENT 2009-1429-D 

KENT 2006-308-R 

KENT 2007-318 

VA 2009-29 

WEST 2009-286-DM 

WEST 2007-898-R 

PENN 2009-97-R 

PENN 2010-103-E 

. LAKE 2008-486-DM 

KENT 2009-537 

WEST 2007-844-M 

SE 2008-667 

KENT 2007-217-R 

YORK.2007-76-R 

WEST 2007-811-DM 

PENN 2008-76-M 

.. CENT 2008-153-M 

KENT 2007-451 . 

WEST 2009-504-"R 

WEVA 2006-853 · 

. WEV A 2008-471 : 

WEVA 2008-804 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

KENT 2009-302-D 

LAKE 2008-479 

LAKE 2009-391 

LAKE 2009-487 

LAKE 2009-589 

LAKE 2009-598 

Pg. 689 

Pg. 458 

Pg. 1172 

Pg. 1143 

Pg. 438 

Pg. 1486 

Pg.1464 

Pg. 1387 

Pg. 243 

Pg. 168 

Pg. 1440 

Pg. ·237' 

Pg. 622 

Pg.1459 

Pg. 1501 

Pg. 1197 

Pg. 619 

Pg. 631 

Pg. 700, 

. · Pg. 1169, 

·:·P.g.i!2l9 ,·. 

;::Pg:,•287 : . 

Pg~ ~·640 

Pg; 479 

·Pg. "306 ··. 

Pg. 717 

Pg. 961 

Pg. 972 

Pg. 1277 

Pg. 1515 

Pg. 1533 

Pg. 1541 

Pg. 1549 

Pg. 732 

Pg. 734 

Pg. 736 

Pg. 738 
06-30-2009 

07-23-2009 

12-02-2009 

04-21-2009 

06-04-2009 

12-18-2009 

07-15-2009 

05-15-2009 

06-30-2009 

12-10-2009 

09-01-2009 

06-30-2009 

02-17-2009 

Five Star Mining, Inc. 

Genwal Resources, Inc. 

Gilbert Development Corp. 

Hopkins County Coal., LLC. 

Jim Walter Resources, Inc. 

Litts & Sons Stone Company 

Mach Mining, LLC. 

Mach Mining, LLC. 

Mountain Coal Company, LLC. 

Mountain Coal Company 

(correcting clerical error- page sub.) 

SCP Investments, LLC. . 

Solar Sources, Inc. 

United Taconite, LLC. 

8 

G:D U.S. GOVERNMENT PRINTING OFFICE: 201D-358-021/74306 

. LAKE 2009-616 

WEST 2008-939 

WEST 2008-201-M 

KENT 2009-820-R 

SE 2008-124-R 

PENN 2009-273-M 

LAKE 2009-323-R 

LAKE 2009-395-R 

WEST 2009-189 

WEST 2007-409-R 

SE 2006-148-M . 

LAKE 2009-253 . 

LAKE 2008-93-RM 

Pg. 740 

Pg. 956 

Pg. 1547 

Pg. 481 

Pg. 724 

Pg. 1557 

Pg. 947 

Pg. 709 

Pg. 742 

Pg. 1559 

Pg. '1273' ' 

Pg. 729 

Pg. 312